[Federal Register Volume 69, Number 182 (Tuesday, September 21, 2004)]
[Rules and Regulations]
[Pages 56357-56363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21185]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-7816-9]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: Environmental Protection Agency (EPA) is granting a petition 
submitted by American Chrome & Chemicals L.P. (ACC) to exclude (or 
delist) a certain solid waste generated by its Corpus Christi, Texas 
facility from the lists of hazardous wastes. This final rule responds 
to the petition submitted by ACC to delist K006 dewatered sludge 
generated from the production of chrome oxide green pigments.
    After careful analysis and use of the Delisting Risk Assessment 
Software (DRAS), EPA has concluded the petitioned waste is not 
hazardous waste. This exclusion applies to 1,450 cubic yards per year 
of the dewatered sludge. Accordingly, this final rule excludes the 
petitioned waste from the requirements of hazardous waste regulations 
under the Resource Conservation and Recovery Act (RCRA) when disposed 
of in a Subtitle D landfill.

DATES: Effective Date: September 21, 2004.

ADDRESSES: The public docket for this final rule is located at the U.S. 
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202, and is available for viewing in EPA Freedom of Information 
Act review room on the 7th floor from 9 a.m. to 4 p.m., Monday through 
Friday, excluding Federal holidays. Call (214) 665-6444 for 
appointments. The reference number for this docket is [F-03-TXDEL-ACC]. 
The public may copy

[[Page 56358]]

material from any regulatory docket at no cost for the first 100 pages 
and at a cost of $0.15 per page for additional copies.

FOR FURTHER INFORMATION CONTACT: Ben Banipal, 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.
    For technical information concerning this notice, contact Michelle 
Peace, U.S. Environmental Protection Agency, 1445 Ross Avenue, Dallas, 
Texas .

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

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

I. Overview Information

A. What Action Is EPA Finalizing?

    After evaluating the petition, EPA proposed, on November 17, 2003 
to exclude the ACC waste from the lists of hazardous waste under 
Sec. Sec.  261.31 and 261.32 (see 68 FR 64836). EPA is finalizing the 
decision to grant ACC's delisting petition to have its dewatered sludge 
(chromic oxide) excluded, or delisted, generated from its process of 
manufacturing chromic oxide subject to certain continued verification 
and monitoring conditions.

B. Why Is EPA Approving This Delisting?

    ACC's petition requests a delisting from the K006 waste listings 
under 40 CFR 260.20 and 260.22. ACC does not believe that the 
petitioned waste meets the criteria for which EPA listed it. ACC also 
believes no additional constituents or factors could cause the waste to 
be hazardous. EPA's review of this petition included consideration of 
the original listing criteria, and the additional factors required by 
the Hazardous and Solid Waste Amendments of 1984 (HSWA). See section 
3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-
(4)(hereinafter all sectional references are to 40 CFR unless otherwise 
indicated). In making the final delisting determination, EPA evaluated 
the petitioned waste against the listing criteria and factors cited in 
Sec.  261.11(a)(2) and (a)(3). Based on this review, EPA agrees with 
the petitioner that the waste is nonhazardous with respect to the 
original listing criteria. (If EPA had found, based on this review, 
that the waste remained hazardous based on the factors for which the 
waste was originally listed, EPA would have proposed to deny the 
petition.) EPA 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. 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. EPA 
believes that the petitioned waste does not meet the listing criteria 
and thus should not be a listed waste. EPA's final 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. What Are the Limits of This Exclusion?

    This exclusion applies to the waste described in the April 2002 
petition only if the requirements described in 40 CFR part 261, 
appendix IX, Table 2 and the conditions contained herein are satisfied.

D. How Will ACC Manage the Waste If It Is Delisted?

    The delisted waste stream will be disposed of in a non-hazardous 
waste landfill.

E. When Is the Final Delisting Exclusion Effective?

    This rule is effective September 21, 2004. The Hazardous and Solid 
Waste Amendments of 1984 amended section 3010 of RCRA, 42 USCA 
6930(b)(1), allow rules to become effective in less than six months 
after the rule is published when the regulated community does not need 
the six-month period to come into compliance. That is the case here 
because this rule reduces, rather than increases, the existing 
requirements for persons generating hazardous waste. This reduction in 
existing requirements also provides a basis for making this rule 
effective immediately, upon final publication, under the Administrative 
Procedure Act, pursuant to 5 USCA 553(d).

F. How Does This Final Rule Affect States?

    Because EPA is issuing this exclusion under the Federal RCRA 
delisting program, only states subject to Federal RCRA delisting 
provisions would be affected. This would exclude states which have 
received authorization from 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, 
Oklahoma, 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 a Delisting Petition?

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

[[Page 56359]]

B. What Regulations Allow Facilities To Delist a Waste?

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

C. What Information Must the Generator Supply?

    Petitioners must provide sufficient information to EPA to allow EPA 
to determine that the waste to be excluded does not meet any of the 
criteria under which the waste was listed as a hazardous waste. In 
addition, the Administrator must determine, where he/she has a 
reasonable basis to believe that factors (including additional 
constituents) other than those for which the waste was listed could 
cause the waste to be a hazardous waste and that such factors do not 
warrant retaining the waste as a hazardous waste.

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

A. What Waste Did ACC Petition EPA To Delist?

    On April 17, 2002, ACC petitioned EPA to exclude from the lists of 
hazardous waste contained in Sec.  261.32, dewatered sludge generated 
from its facility located in Corpus Christi, Texas. The waste falls 
under the classification of listed waste under Sec.  261.30.

B. How Much Waste Did ACC Propose To Delist?

    Specifically, in its petition, ACC requested that EPA grant an 
exclusion for 1,450 cubic yards per year of the dewatered sludge.

C. What Information Did ACC Present To Support Its Petition To Delist 
the Waste?

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

IV. Public Comments Received on the Proposed Exclusion

A. Who Submitted Comments on the Proposed Rule

    Two comments were received from the general public expressing 
opposition to the proposed rule.

B. Summary of the Comments and EPA Responses

    The first comment opposed EPA's decision to delist this material 
because it places a ``green'' name on dangerous sewage sludges.
    It is EPA's position that the waste information presented does not 
indicate that the waste will pose a threat to human health or the 
environment. The disposal of this material is regulated, just under 
Subtitle D regulations. The regulations allow a specific facility to 
demonstrate that the waste should not be regulated as a hazardous waste 
and ACC has done so.
    The second comment opposes EPA's decision because (1) additional 
constituents warrant the waste remaining hazardous; (2) accurate ground 
water risks have not been made; (3) the test period should cover four 
years and not be hurried; and (4) a true environmental organization 
should be check and test that the information is true.
    It is EPA's position that there are no additional constituents 
present in the sludge that warrant retaining the sludge as hazardous 
waste. A totals analysis for all the constituents in 40 CFR part 264, 
appendix IX was presented as part of the sampling and analysis event 
and none of the constituents present pose a threat to human health and 
the environment. The ground water risks were modeled and these 
conservative results fell within the acceptable range of protection of 
human health and the environment. ACC will be required to continuously 
evaluate the sludge prior to disposal as long as this exclusion is in 
place. The companies typically evaluate years of historical data before 
approaching EPA with a petition to delist. Finally, any interested 
outside organization can review and check the data of any petition. 
That information is available to the public.

V. Regulatory Impact

    Under Executive Order 12866, 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 EPA's hazardous waste management regulations. This 
reduction would be achieved by excluding waste generated at a specific 
facility from EPA's lists of hazardous 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 (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 small entities.
    This rule, if promulgated, will not have an adverse economic impact 
on small entities since its effect would be to reduce the overall costs 
of EPA's hazardous waste regulations and would be limited to one 
facility. Accordingly, EPA hereby certifies that this proposed 
regulation, if promulgated, will not have a significant economic impact 
on a substantial number of small entities. This regulation, therefore, 
does not require a regulatory flexibility analysis.

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, 
EPA generally must prepare a written

[[Page 56360]]

statement for rules with Federal mandates that may result in estimated 
costs to State, local, and tribal governments in the aggregate, or to 
the private sector, of $100 million or more in any one year.
    When such a statement is required for EPA rules, under section 205 
of the UMRA EPA must identify and consider alternatives, including the 
least costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. EPA must select that alternative, 
unless the Administrator explains in the final rule why it was not 
selected or it is inconsistent with law.
    Before EPA establishes regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must develop under section 203 of the UMRA a small 
government agency plan. The plan must provide for notifying potentially 
affected small governments, giving them meaningful and timely input in 
the development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising them 
on compliance with the regulatory requirements.
    The UMRA generally defines a Federal mandate for regulatory 
purposes as one that imposes an enforceable duty upon state, local, or 
tribal governments or the private sector.
    EPA finds that 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 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997). This order applies to any rule that EPA determines (1) is 
economically significant as defined under Executive Order 12866, and 
(2) the environmental health or safety risk addressed by the rule has a 
disproportionate effect on children. If the regulatory action meets 
both criteria, 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 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, EPA may not issue a regulation that is 
not required by statute, that significantly affects or uniquely affects 
the communities of Indian tribal governments, and that imposes 
substantial direct compliance costs on those communities, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by the tribal governments.
    If the mandate is unfunded, EPA must provide to the Office 
Management and Budget, in a separately identified section of the 
preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation.
    In addition, Executive Order 13084 requires EPA to develop an 
effective process permitting elected and other representatives of 
Indian tribal governments to 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) if the National Technology Transfer and 
Advancement Act, 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 EPA, the Act 
requires that EPA 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, 
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 EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that impose substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless EPA 
consults with State and local officials early in the process of 
developing the proposed regulation.
    This action does not have federalism implications. 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: September 9, 2004.
Carl E. Edlund,
Director, Multimedia Planning and Permitting Division, Region 6.


0
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

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


[[Page 56361]]


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


0
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 & Chemical.......................  Corpus Christi, Texas..................  Dewatered sludge
                                                                                             (the EPA Hazardous
                                                                                             Waste No. K006)
                                                                                             generated at a
                                                                                             maximum generation
                                                                                             of 1450 cubic yards
                                                                                             per calendar year
                                                                                             after September 21,
                                                                                             2004 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.
                                                                                            (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 or
                                                                                             another appropriate
                                                                                             method found in a
                                                                                             reliable source
                                                                                             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 perform sample
                                                                                             collection and
                                                                                             analyses, including
                                                                                             quality control
                                                                                             procedures,
                                                                                             according to
                                                                                             appropriate methods
                                                                                             such as those found
                                                                                             in SW-846 or other
                                                                                             reliable sources
                                                                                             (with the exception
                                                                                             of analyses
                                                                                             requiring the use
                                                                                             of SW-846 methods
                                                                                             incorporated by
                                                                                             reference in 40 CFR
                                                                                             260.11, which must
                                                                                             be used without
                                                                                             substitution. 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:

[[Page 56362]]

 
                                                                                            (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.
                                                                                            (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.

[[Page 56363]]

 
                                                                                            (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.
 
                                                  * * * * * * *
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[FR Doc. 04-21185 Filed 9-20-04; 8:45 am]
BILLING CODE 6560-50-P