[Federal Register Volume 69, Number 227 (Friday, November 26, 2004)]
[Proposed Rules]
[Pages 68851-68859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26166]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-7842-9]


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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[[Page 68852]]

SUMMARY: The Environmental Protection Agency (EPA, also ``the Agency'' 
or ``we'' in this preamble) is proposing to modify a conditional 
exclusion (or ``delisting'') from the lists of hazardous waste, 
previously granted to BMW Manufacturing Co., LLC (BMW), in Greer, South 
Carolina. This action responds to a petition for amendment requested by 
BMW to eliminate the total concentration limits its wastewater 
treatment sludge covered by its current conditional exclusion.
    The Agency is basing its tentative decision to grant the petition 
for amendment on a re-evaluation of the specific information initially 
provided by the petitioner in its original request and on an evaluation 
of delistings granted to other automobile manufactures for its F019 
waste. This tentative decision, if finalized, would eliminate the total 
concentration limits of barium, cadmium, chromium, lead, nickel, and 
cyanide from its conditionally excluded wastewater treatment sludge 
from the requirements of the hazardous waste regulations under the 
Resource Conservation and Recovery Act (RCRA). The waste will still be 
subject to local, State, and Federal regulations for nonhazardous solid 
wastes.

DATES: EPA is requesting public comments on this proposed amendment. We 
will accept comments on this proposal until January 10, 2005. Comments 
postmarked after the close of the comment period will be stamped 
``late.'' These late comments may not be considered in formulating a 
final decision.
    Any person may request a hearing on this proposed decision by 
filing a request by December 13, 2004.

ADDRESSES: Send two copies of your comments to Narindar Kumar, Chief, 
RCRA Enforcement and Compliance Branch, U.S. Environmental Protection 
Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, 
Atlanta, Georgia 30303. Send one copy to Cindy Carter, Appalachia III 
District, South Carolina Department of Health and Environmental 
Control, 975C North Church Street, Spartanburg, South Carolina 29303.
    Requests for a hearing should be addressed to Winston A. Smith, 
Director, Waste Management Division, U.S. Environmental Protection 
Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, 
SW., Atlanta, Georgia 30303. The request must contain the information 
prescribed in 40 CFR 260.20(d).
    The RCRA regulatory docket for this proposed rule is located at the 
EPA Library, U.S. Environmental Protection Agency, Region 4, Sam Nunn 
Atlanta Federal Center, 61 Forsyth Street, Atlanta, Georgia 30303, and 
is available for viewing from 9 a.m. to 4 p.m., Monday through Friday, 
excluding Federal holidays. The docket contains the petition, all 
information submitted by the petitioner, and all information used by 
EPA to evaluate the petition.
    The public may copy material from any regulatory docket at no cost 
for the first 100 pages, and at a cost of $0.15 per page for additional 
copies.

FOR FURTHER INFORMATION CONTACT: For general and technical information 
about this proposed amendment, contact Kris Lippert, North Enforcement 
and Compliance Section, (Mail Code 4WD-RCRA), RCRA Enforcement and 
Compliance Branch, U.S. Environmental Protection Agency, Region 4, Sam 
Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 
30303, (404) 562-8605.

SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed 
in the following outline:

I. Background
    A. What Laws and Regulations Give EPA the Authority to Delist 
Wastes?
    B. What is Currently Delisted at BMW?
    C. What Does BMW Request in Its Petition for Amendment?
II. Disposition of Delisting Petition
    A. What Information Did BMW Submit to Support Its Petition for 
Amendment?
    B. How Did EPA Evaluate this Petition?
    1. How Did EPA Evaluate the 2000 BMW's Petition?
    2. How Did EPA Evaluate this Proposed Amendment?
    C. What Conclusions Did EPA Reach?
    What Are the Terms of this Exclusion?
III. Limited Effect of Federal Exclusion
    Will this Rule Apply in All States?
IV. Effective Date
V. Paperwork Reduction Act
VI. National Technology Transfer and Advancement Act
VII. Unfunded Mandates Reform Act
VIII. Regulatory Flexibility Act, as Amended by the Small Business 
Regulatory Enforcement and Fairness Act
IX. Executive Order 12866
X. Executive Order 12875
XI. Executive Order 13045
XII. Executive Order 13084
XIII. Submission to Congress and General Accounting Office
XIV. Executive Order 13132

I. Background

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

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

[[Page 68853]]

promulgated subsequent to a delisting decision.)
    In addition, residues from the treatment, storage, or disposal of 
listed hazardous wastes and mixtures containing listed hazardous wastes 
are also considered hazardous wastes. See Sec.  261.3(a)(2)(iv) and 
(c)(2)(i), referred to as the ``mixture'' and ``derived-from'' rules, 
respectively. Such wastes are also eligible for exclusion and remain 
hazardous wastes until excluded. On December 6, 1991, the U.S. Court of 
Appeals for the District of Columbia vacated the ``mixture/derived-
from'' rules and remanded them to the EPA on procedural grounds. Shell 
Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). On March 3, 1992, EPA 
reinstated the mixture and derived-from rules, and solicited comments 
on other ways to regulate waste mixtures and residues (57 FR 7628). 
These rules became final on October 30, 1992, 57 FR 49278, and should 
be consulted for more information regarding waste mixtures and solid 
wastes derived from treatment, storage, or disposal of a hazardous 
waste. The mixture and derived-from rules are codified in 40 CFR 261.3 
(b)(2) and (c)(2)(i). EPA plans to address waste mixtures and residues 
when the final portion of the Hazardous Waste Identification Rule 
(HWIR) is promulgated.
    On October 10, 1995, the Administrator delegated to the Regional 
Administrators the authority to evaluate and approve or deny petitions 
submitted in accordance with Sec. Sec.  260.20 and 260.22, by 
generators within their Regions (National Delegation of Authority 8-
19), in States not yet authorized to administer a delisting program in 
lieu of the Federal program. On March 11, 1996, the Regional 
Administrator of EPA, Region 4, redelegated delisting authority to the 
Director of the Waste Management Division (Regional Delegation of 
Authority 8-19).

B. What Is Currently Delisted at BMW?

    BMW manufactures BMW automobiles at its facility in Greer, South 
Carolina. On June 2, 2000, BMW petitioned EPA under the provisions in 
40 CFR 260.20 and 260.22 to exclude from hazardous waste regulations 
its F019 wastewater treatment sludge.
    In support of its petition, BMW submitted sufficient information to 
EPA to allow us to determine that the waste was not hazardous based 
upon the criteria for which it was listed and that no other hazardous 
constituents were present in the waste at levels of regulatory concern.
    A full description of this waste and the Agency's evaluation of the 
2000 BMW's petition are contained in the proposed rule and request for 
comments published in the Federal Register on February 12, 2001, (66 FR 
9781-9798).
    After evaluating public comment on the proposed rule, we published 
a final decision in the Federal Register on May 2, 2001, (66 FR 21877-
21886), to exclude BMW's wastewater treatment sludge derived from the 
treatment of EPA Hazardous Waste No. F019 from the list of hazardous 
wastes found in 40 CFR 261.31.
    EPA's final decision in 2001 was conditional on the TCLP and total 
concentration limits of barium, cadmium, chromium, cyanide, lead, and 
nickel. If the sludge exceeds the TCLP or total concentration limits, 
then that sludge would have to be managed as hazardous waste.

C. What Does BMW Request in Its Petition for Amendment?

    As a result of delistings granted to other automobile manufactures 
by EPA, BMW petitioned EPA on December 11, 2003, for an amendment to 
its May 2, 2001, final exclusion.
    In its petition, BMW requested to eliminate the total concentration 
limits.

II. Disposition of Delisting Petition

A. What Information Did BMW Submit To Support Its Petition for 
Amendment?

    BMW petitioned EPA, Region 4, on June 2, 2000, to exclude its F019 
waste, on a generator-specific basis, from the lists of hazardous 
wastes in 40 CFR part 261, subpart D. BMW requested EPA to review its 
original submittals to support its 2000 petition for this petition 
amendment to eliminate all total concentration limits. BMW also 
requested EPA to review other delisting petitions granted by EPA to 
automobile manufactures for the F019 waste to support this petition for 
amendment.
    In support of its 2000 petition, BMW submitted: (1) Descriptions of 
its manufacturing and wastewater treatment processes, the generation 
point of the petitioned waste, and the manufacturing steps that will 
contribute to its generation; (2) Material Safety Data Sheets (MSDSs) 
for materials used to manufacture automobiles and to treat wastewater; 
(3) the minimum and maximum annual amounts of wastewater treatment 
sludge generated from 1996 through 1999, and an estimate of the maximum 
annual amount expected to be generated in the future; (4) results of 
analysis for metals, cyanide, sulfide, fluoride, and volatile organic 
compounds in the currently generated waste at the BMW plants in Greer, 
South Carolina, and Dingolfing, Germany; (5) results of the analysis of 
leachate from these wastes, obtained by means of the Toxicity 
Characteristic Leaching Procedure ((TCLP), SW-846 Method 1311 \2\); (6) 
results of the determinations for the hazardous characteristics of 
ignitability, corrosivity, and reactivity in these wastes; (7) results 
of determinations of dry weight percent, bulk density, and free liquids 
in these wastes; and (8) results of the analysis of the waste currently 
generated at the plant in Greer, South Carolina, by means of the 
Multiple Extraction Procedure (MEP), SW-846 Method 1320, in order to 
evaluate the long-term resistance of the waste to leaching in a 
landfill.
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    \2\ ``SW-846'' means EPA Publication SW-846, ``Test Methods for 
Evaluating Solid Waste, Physical/Chemical Methods.'' Methods in this 
publication are referred to in today's proposed rule as ``SW-846,'' 
followed by the appropriate method number.
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B. How Did EPA Evaluate This Petition?

1. How Did EPA Evaluate the 2000 BMW's Petition?
    In making the initial delisting determination, EPA evaluated the 
petitioned waste against the listing criteria and factors cited in 
Sec.  261.11 (a)(2) and (a)(3). Based on this review, EPA agreed with 
the petitioner that the waste was nonhazardous with respect to the 
original listing criteria. (If EPA had found, based on this review, 
that the waste remained hazardous based on the factors for which the 
waste was originally listed, EPA would have proposed to deny the 
petition.) EPA then evaluated the waste with respect to other factors 
or criteria to assess whether there is a reasonable basis to believe 
that such additional factors could cause the waste to be hazardous. See 
Sec.  260.22 (a) and (d). EPA considered whether the waste was acutely 
toxic, and considered the toxicity of the constituents, the 
concentration of the constituents in the waste, their tendency to 
migrate and to bioaccumulate, their persistence in the environment once 
released from the waste, plausible and specific types of management of 
the petitioned waste, the quantities of waste generated, and waste 
variability.
    BMW submitted to EPA analytical data from its Greer, South Carolina 
plant and from the BMW plant in Dingolfing, Germany. Four composite 
samples of wastewater treatment sludge, from approximately 60 batches 
of wastewater, were collected from each plant over a three-week period. 
After reviewing this analytical data and information on

[[Page 68854]]

processes and raw materials, EPA identified the following constituents 
of concern: barium, cadmium, chromium, cyanide, lead, and nickel. The 
maximum reported concentrations of the toxicity characteristic (TC) 
metals barium, cadmium, chromium, and lead in the TCLP extracts of the 
samples were below the TC regulatory levels. The maximum reported 
concentration of total cyanide in unextracted waste was 3.35 milligrams 
per kilogram (mg/kg), which is greater than the generic exclusion level 
of 1.8 mg/kg for high temperature metal recovery (HTMR) residues in 40 
CFR 261.3(c)(2)(ii)(C)(1), and less than 590 mg/kg, the Land Disposal 
Restrictions (LDR) Universal Treatment Standards (UTS) level, in 40 CFR 
268.48. Chromium was undetected in the TCLP extract of any sample. The 
maximum reported concentration of barium in unextracted samples was 144 
mg/kg for the German plant and 402 mg/kg for the Greer, South Carolina 
plant. The maximum reported concentration of chromium in unextracted 
samples was 100 mg/kg for the German plant and 222 mg/kg for the Greer, 
South Carolina plant. The maximum concentration of nickel in the TCLP 
extract of any sample was 0.73 milligrams per liter (mg/l) for the 
German plant and 6.25 mg/l for the Greer, South Carolina plant. The 
maximum reported concentration of nickel in unextracted samples was 
6,500 mg/kg for the German plant and 1,700 mg/kg for the Greer, South 
Carolina plant. See the proposed rule, 66 FR 9781-9798, February 12, 
2001, for details on BMW's analytical data, production process, and 
generation process for the petitioned waste.
    After developing the list of constituents of concern, EPA 
calculated delisting levels for each of them using Maximum Contaminant 
Levels (MCLs) and EPA Composite Model for Landfills (EPACML) Dilution 
Attenuation Factors (DAFs) and calculated delisting levels and risks 
using Delisting Risk Assessment Software (DRAS) and EPA Composite Model 
for Leachate Migration with Transformation Products (EPACMTP) DAFs.
    EPA also used three additional methods of evaluating BMW's 
delisting petition and determining delisting levels: (1) Use of the 
Multiple Extraction Procedure (MEP), SW-846 Method 1320,\3\ to evaluate 
the long-term resistance of the waste to leaching in a landfill; (2) 
setting limits on total concentrations of constituents in the waste 
that are more conservative than results of calculations of constituent 
release from waste in a landfill to surface water and air, and release 
during waste transport; and (3) setting delisting levels at the Land 
Disposal Restrictions (LDR) Universal Treatment Standards (UTS) levels 
in 40 CFR 268.48. The UTS levels for BMW's constituents of concern are 
the following: Barium: 21 mg/l TCLP; Cadmium: 0.11 mg/l TCLP; Chromium: 
0.60 mg/l TCLP; Cyanide Total: 590 mg/kg; Cyanide Amenable 30 mg/kg; 
Lead: 0.75 mg/l TCLP; Nickel: 11 mg/l TCLP.
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    \3\ ``SW-846'' means EPA Publication SW-846, ``Test Methods for 
Evaluating Solid Waste, Physical/Chemical Methods.'' Methods in this 
publication are referred to in today's proposed rule as ``SW-846,'' 
followed by the appropriate method number.
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    After considering all public comments on the February 12, 2001, 
Proposed Rule, and the MEP analysis of the petitioned waste which 
indicated long-term resistance to leaching (see 66 FR 9793-9794, 
February 12, 2001), EPA granted BMW, in the May 2, 2001, Final Rule, an 
exclusion from the lists of hazardous wastes in subpart D of 40 CFR 
part 261 for its petitioned waste when disposed in a Subtitle D \4\ 
landfill. In the 2001 Final Rule, BMW was required to meet delisting 
conditions based on the DRAS EPACMTP model in order for this exclusion 
to be valid. For details, see the following Federal Registers: 65 FR 
75637-75651, December 4, 2000; 65 FR 58015-58031, September 27, 2000; 
the proposed rule for BMW's petitioned waste, 66 FR 9792-9793, February 
12, 2001, and Final Rule for BMW's petitioned waste, 66 FR 21877-21886, 
May 2, 2001.
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    \4\ The term, ``Subtitle D landfill,'' refers to a landfill that 
is licensed to land dispose nonhazardous wastes, that is, wastes 
that are not RCRA hazardous wastes. A Subtitle D landfill is subject 
to federal standards in 40 CFR parts 257 and 258 and to state and 
local regulations for nonhazardous wastes and nonhazardous waste 
landfills.
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    Delisting levels and risk levels calculated by DRAS, using the 
EPACMTP model, are presented in Table 1 below. DRAS found that the 
major pathway for human exposure to this waste is groundwater 
ingestion, and calculated delisting and risk levels based on that 
pathway. The input values required by DRAS were the chemical 
constituents in BMW's petitioned waste; their maximum reported 
concentrations in the TCLP extract of the waste and in the unextracted 
waste; the maximum annual volume to be disposed (2,850 cubic yards) in 
a landfill; the desired risk level, which was chosen to be no worse 
than 10-\6\ for carcinogens; and a hazard quotient of no 
greater than 1 for non-carcinogens. The only carcinogenic constituent 
in the waste is cadmium, and cadmium also has non-carcinogenic toxic 
effects. Allowable total concentrations in the waste, as calculated by 
DRAS for the waste, itself, not the TCLP leachate, were all at least 
1,000 times greater than the actual maximum total concentrations found 
in the waste, and are not included in Table 1, since many amount to 
metal or cyanide concentrations of several percent. However, in 
addition to limits on the concentrations of constituents in the TCLP 
leachate of the petitioned waste, EPA did set the following limits on 
total concentrations, in units of milligrams of constituent per 
kilogram of unextracted waste (mg/kg): Barium: 2,000; Cadmium: 500; 
Chromium: 1,000; Cyanide (Total, not Amenable): 200; Lead: 2,000; and 
Nickel: 20,000. The maximum reported total concentrations for BMW's 
petitioned waste were all below these limits. The limit for cyanide was 
chosen so that the waste could not exhibit the reactivity 
characteristic for cyanide by exceeding the interim guidance for 
reactive cyanide of 250 mg/kg of releasable hydrogen cyanide (SW-846, 
Chapter Seven, Section 7.3.3.)

       Table 1.--Delisting and Risk Levels Calculated by DRAS With EPACMTP Model for BMW Petitioned Waste
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                                                                                                DRAS-calculated
                                                                            DRAS-calculated     hazard quotient
                                   Delisting level                         risk for maximum       for maximum
          Constituent                (mg/l TCLP)              DAF          concentration of    concentration of
                                                                             carcinogen in     non-carcinogen in
                                                                                 waste               waste
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Barium.........................  182\a\               69.2                ..................  4.87 x 10-\2\
Cadmium........................  1.4\a\               74.6                1.62 x 10-\13\      3.57 x 10-\2\

[[Page 68855]]

 
Chromium.......................  5.39 x 105 \a\       9,580               ..................  5.8 x 10-\7\
Cyanide........................  33.6                 44.8                ..................  1.49 x 10-\3\
Lead...........................  187\a\               1.24 x 10\4\        ..................  Not Calculable; No
                                                                                               Reference Dose
                                                                                               for Lead.
Nickel.........................  70.3                 93.5                ..................  8.9 x 10-\2\
    Total Hazard Quotient for    ...................  ..................  ..................  0.187
     All Waste Constituents.
    Total Carcinogenic Risk for  ...................  ..................  1.62 x 10-\13\      ..................
     the Waste (due to Cadmium).
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\a\ These levels are all greater than the Toxicity Characteristic (TC) regulatory level in 40 CFR 261.24. A
  waste cannot be delisted if it exhibits a hazardous characteristic; therefore, the delisting level for each of
  these constituents could not be greater than the TC level of 100 for Barium; 1.0 for Cadmium; 5.0 for
  Chromium; and 5.0 for Lead.

2. How Did EPA Evaluate This Proposed Amendment?
    EPA reviewed the allowable total concentrations in the waste, as 
calculated by DRAS for the waste, to determine if increasing the barium 
total concentration limit would be still protective to human health and 
the environment. The allowable total concentrations, according to the 
DRAS, were all at least 1,000 times greater than the actual maximum 
total concentrations found in the waste. Based on the DRAS results, EPA 
proposes to grant BMW's petition for amendment to eliminate all total 
concentration limits. EPA asks for public comment on this new totals 
limit set for barium which has been calculated to be both protective of 
human health and the environment and realistic, attainable values for 
BMW's wastewater treatment sludge.

C. What Conclusions Did EPA Reach?

    EPA believes that the information provided by BMW provides a 
reasonable basis to eliminate all total concentration limits. We, 
therefore, propose to grant BMW an amendment to its current delisting 
for an elimination of all total concentration limits on its delisted 
wastewater treatment sludge and are requesting comments solely on 
eliminating all total concentration limits.
    EPA believes that this proposal to eliminate all concentration 
limits will not harm human health and the environment when disposed in 
a nonhazardous waste landfill, if the proposed delisting levels are 
met.
    EPA proposes to eliminate all total concentration limits, based on 
descriptions of waste management and waste history, evaluation of the 
results of waste sample analysis, and on the requirement that BMW's 
petitioned waste must meet this proposed amendment delisting level of 
all the constituents of concern concentration limits as state in the 
May 2, 2001, Final Rule before disposal. If this proposed amendment 
becomes final, the petitioned waste would not be subject to regulation 
under 40 CFR parts 262 through 268 and the permitting standards of 40 
CFR part 270. Although management of the waste covered by this petition 
would, upon final promulgation, be relieved from Subtitle C 
jurisdiction, the waste would remain a solid waste under RCRA. As such, 
the waste must be handled in accordance with all applicable Federal, 
State, and local solid waste management regulations. Pursuant to RCRA 
section 3007, EPA may also sample and analyze the waste to determine if 
delisting conditions are met.
    EPA believes that BMW's petitioned waste will not harm human health 
and the environment when disposed in a nonhazardous waste landfill if 
the delisting levels are met as granted in the May 2, 2001, Final Rule 
and amended in this petition.
What Are the Terms of This Exclusion?
    The following summarizes the maximum allowable constituent 
concentrations (delisting levels) for BMW's waste. We calculated these 
delisting levels for each constituent that is part of BMW's current 
delisting based on the DRAS EPACMTP model, which grants BMW an 
exclusion from the lists of hazardous wastes in subpart D of 40 CFR 
part 261 for its petitioned waste when disposed in a Subtitle D\5\ 
landfill. BMW must meet all of the following delisting conditions in 
order for this exclusion to be valid: delisting levels in mg/l in the 
TCLP extract of the waste of 100.0\6\ for Barium, 1.0 for Cadmium, 5.0 
for Chromium, 33.6 for Cyanide, 5.0 for Lead, and 70.3 for Nickel.
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    \5\ The term, ``Subtitle D landfill,'' refers to a landfill that 
is licensed to land dispose nonhazardous wastes, that is, wastes 
that are not RCRA hazardous wastes. A Subtitle D landfill is subject 
to federal standards in 40 CFR parts 257 and 258 and to state and 
local regulations for nonhazardous wastes and nonhazardous waste 
landfills.
    \6\ Delisting levels cannot exceed the Toxicity Characteristic 
(TC) regulatory levels. Therefore, although the DRAS EPACMTP 
calculates higher concentrations (see the proposed rule, 66 FR 9793, 
February 12, 2001, and Table 1, below), the delisting levels in the 
final rule are set at the TC levels for barium, cadmium, chromium, 
and lead. In order for the waste to be delisted, concentrations in 
the TCLP extract of the waste must be less than the TC levels. See 
the regulatory definition of a TC waste in 40 CFR 261.24.
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III. Limited Effect of Federal Exclusion

Will This Rule Apply in All States?

    This proposed rule, if promulgated, would be issued under the 
Federal (RCRA) delisting program. States, however, are allowed to 
impose their own, non-RCRA regulatory requirements that are more 
stringent than EPA's, pursuant to section 3009 of RCRA. These more 
stringent requirements may include a provision which prohibits a 
federally issued exclusion from taking effect in the States. Because a 
petitioner's waste may be regulated under a dual system (i.e., both 
Federal and State programs), petitioners are urged to contact State

[[Page 68856]]

regulatory authorities to determine the current status of their wastes 
under the State laws. Furthermore, some States are authorized to 
administer a delisting program in lieu of the Federal program, i.e., to 
make their own delisting decisions. Therefore, this proposed exclusion, 
if promulgated, would not apply in those authorized States. If the 
petitioned waste will be transported to any State with delisting 
authorization, BMW must obtain delisting authorization from that State 
before the waste may be managed as nonhazardous in that State.

IV. Effective Date

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

V. Paperwork Reduction Act

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

VI. National Technology Transfer and Advancement Act

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

VII. Unfunded Mandates Reform Act

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

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

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

IX. Executive Order 12866

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition , jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;

[[Page 68857]]

    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal of policy issues arising out of legal 
mandates, the President's priorities or the principles set forth in the 
Executive Order.
    OMB has exempted this proposed rule from the requirement for OMB 
review under section (6) of Executive Order 12866.

X. Executive Order 12875

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a state, local, 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of state, local, and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.'' 
Today's rule does not create a mandate on state, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of Executive 
Order 12875 do not apply to this rule.

XI. Executive Order 13045

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

XII. Executive Order 13084

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

XIII. Submission to Congress and General Accounting Office

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

XIV. Executive Order 13132

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

List of Subjects in 40 CFR Part 261

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

    Dated: November 10, 2004.
Winston A. Smith,
Director, Waste Management Division.

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

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

    Authority: 42 U.S.C 6905, 6912(a), 6921, 6922, 6924(y) and 6938.


[[Page 68858]]


    2. In Table 1 of Appendix IX, Part 261 revise the entry for BMW 
Manufacturing Co., LLC to read as follows:

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

                               Table 1.--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
                Facility                            Address                        Waste Description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
BMW Manufacturing Co., LLC..............  Greer, South Carolina......  Wastewater treatment sludge (EPA
                                                                        Hazardous Waste No. F019) that BMW
                                                                        Manufacturing Corporation (BMW)
                                                                        generates by treating wastewater from
                                                                        automobile assembly plant located on
                                                                        Highway 101 South in Greer,
                                                                        SouthCarolina. This is a conditional
                                                                        exclusion for up to 2,850 cubic yards of
                                                                        waste(hereinafter referred to as ``BMW
                                                                        Sludge'') that will be generated each
                                                                        year and disposed in a Subtitle D
                                                                        landfill after [date of final rule].
                                                                        With prior approval by the EPA,
                                                                        following a public comment period,BMW
                                                                        may also beneficially reuse the sludge.
                                                                        BMW must demonstrate that the following
                                                                        conditions are met for the exclusion to
                                                                        be valid.
                                                                       (1) Delisting Levels: All leachable
                                                                        concentrations for these metals and
                                                                        cyanide must not exceed the following
                                                                        levels (ppm): Barium-100; Cadmium-1;
                                                                        Chromium-5; Cyanide-33.6, Lead-5; and
                                                                        Nickel-70.3. These metal and cyanide
                                                                        concentrations must be measured in the
                                                                        waste leachate obtained by the method
                                                                        specified in 40 CFR 261.24, except that
                                                                        for cyanide, deionized water must be the
                                                                        leaching medium. Cyanide concentrations
                                                                        in waste or leachate must be measured by
                                                                        the method specified in 40 CFR 268.40,
                                                                        Note 7.
                                                                       (2) Annual Verification Testing
                                                                        Requirements: Sample collection and
                                                                        analyses, including quality control
                                                                        procedures, must be performed according
                                                                        to SW-846 methodologies, where specified
                                                                        by regulations in 40 CFR parts 260--270.
                                                                        Otherwise, methods must meet Performance
                                                                        Based Measurement System Criteria in
                                                                        which the Data Quality Objectives are to
                                                                        demonstrate that representative samples
                                                                        of the BMW Sludge meet the delisting
                                                                        levels in Condition (1).
                                                                       (A) Annual Verification Testing: BMW must
                                                                        implement an annual testing program to
                                                                        demonstrate that constituent
                                                                        concentrations measured in the TCLP
                                                                        extract do not exceed the delisting
                                                                        levels established in Condition (1).
                                                                       (3) Waste Holding and Handling: BMW must
                                                                        hold sludge containers utilized for
                                                                        verification sampling until composite
                                                                        sample results are obtained. If the
                                                                        levels of constituents measured in the
                                                                        composite samples of BMW Sludge do not
                                                                        exceed the levels set forth in Condition
                                                                        (1), then the BMW Sludge is non-
                                                                        hazardous and must be managed in
                                                                        accordance with all applicable solid
                                                                        waste regulations. If constituent levels
                                                                        in a composite sample exceed any of the
                                                                        delisting levels set forth in Condition
                                                                        (1), the batch of BMW Sludge generated
                                                                        during the time period corresponding to
                                                                        this sample must be managed and disposed
                                                                        of in accordance with Subtitle C of
                                                                        RCRA.
                                                                       (4) Changes in Operating Conditions: BMW
                                                                        must notify EPA in writing when
                                                                        significant changes in the manufacturing
                                                                        or wastewater treatment processes are
                                                                        implemented. EPA will determine whether
                                                                        these changes will result in additional
                                                                        constituents of concern. If so, EPA will
                                                                        notify BMW in writing that the BMW
                                                                        Sludge must be managed as hazardous
                                                                        waste F019 until BMW has demonstrated
                                                                        that the wastes meet the delisting
                                                                        levels set forth in Condition (1) and
                                                                        any levels established by EPA for the
                                                                        additional constituents of concern, and
                                                                        BMW has received written approval from
                                                                        EPA. IfEPA determines that the changes
                                                                        do not result in additional constituents
                                                                        of concern, EPA will notify BMW, in
                                                                        writing, that BMW must verify that the
                                                                        BMW Sludge continues to meet Condition
                                                                        (1) delisting levels.
                                                                       (5) Data Retention: Records of analytical
                                                                        data from Condition (2) must be
                                                                        compiled, summarized, and maintained by
                                                                        BMW for a minimum of three years, and
                                                                        must be furnished upon request by EPA or
                                                                        the State of South Carolina, and made
                                                                        available for inspection. Failure to
                                                                        maintain the required records for the
                                                                        specified time will be considered by
                                                                        EPA, at its discretion, sufficient basis
                                                                        to revoke the exclusion to the extent
                                                                        directed by EPA. All data must be
                                                                        accompanied by a signed copy of the
                                                                        certification statement in 40 CFR
                                                                        260.22(i)(12).

[[Page 68859]]

 
                                                                       (6) Reopener Language: (A) If, at any
                                                                        time after disposal of the delisted
                                                                        waste, BMW possesses or is otherwise
                                                                        made aware of any environmental data
                                                                        (including but not limited to leachate
                                                                        data or groundwater monitoring data) or
                                                                        any other data relevant to the delisted
                                                                        waste indicating that any constituent
                                                                        identified in the delisting verification
                                                                        testing is at a level higher than the
                                                                        delisting level allowed by EPA in
                                                                        granting the petition, BMW must report
                                                                        the data, in writing, to EPA and South
                                                                        Carolina within 10 days of first
                                                                        possessing or being made aware of that
                                                                        data. (B) If the testing of the waste,
                                                                        as required by Condition (2)(A), does
                                                                        not meet the delisting requirements of
                                                                        Condition (1), BMW must report the data,
                                                                        in writing, to EPA and South Carolina
                                                                        within 10 days of first possessing or
                                                                        being made aware of that data. (C) Based
                                                                        on the information described in
                                                                        paragraphs (6)(A) or (6)(B) and any
                                                                        other information received from any
                                                                        source, EPA will make a preliminary
                                                                        determination as to whether the reported
                                                                        information requires that EPA take
                                                                        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 EPA determines that
                                                                        the reported information does require
                                                                        Agency action, EPA will notify the
                                                                        facility in writing of the action
                                                                        believed necessary to protect human
                                                                        health and the environment. The notice
                                                                        shall include a statement of the
                                                                        proposed action and a statement
                                                                        providing BMW with an opportunity to
                                                                        present information as to why the
                                                                        proposed action is not necessary. BMW
                                                                        shall have 10 days from the date of
                                                                        EPA's notice to present such
                                                                        information.
                                                                       (E) Following the receipt of information
                                                                        from BMW, as described in paragraph
                                                                        (6)(D), or if no such information is
                                                                        received within 10 days, EPA will issue
                                                                        a final written determination describing
                                                                        the Agency actions that are necessary to
                                                                        protect human health or the environment,
                                                                        given the information received in
                                                                        accordance with paragraphs (6)(A) or
                                                                        (6)(B). Any required action described in
                                                                        EPA's determination shall become
                                                                        effective immediately, unless EPA
                                                                        provides otherwise.
                                                                       (7) Notification Requirements: BMW must
                                                                        provide a one-time written notification
                                                                        to any State Regulatory Agency in a
                                                                        State to which or through which the
                                                                        delisted waste described above will be
                                                                        transported, at least 60 days prior to
                                                                        the commencement of such activities.
                                                                        Failure to provide such a notification
                                                                        will result in a violation of the
                                                                        delisting conditions and a possible
                                                                        revocation of the decision to delist.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 04-26166 Filed 11-24-04; 8:45 am]
BILLING CODE 6560-50-P