[Federal Register Volume 70, Number 121 (Friday, June 24, 2005)]
[Proposed Rules]
[Pages 36547-36554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12579]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-7925-2]


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

AGENCY: Environmental Protection Agency.

ACTION: Proposed amendment and request for comment.

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SUMMARY: The Environmental Protection Agency (EPA, also ``the Agency'' 
or ``we'' in this preamble) is proposing to modify an exclusion (or 
``delisting'') from the lists of hazardous waste previously granted to 
Nissan North America, Inc. (Nissan) in Smyrna, Tennessee.
    This action responds to a petition for amendment submitted by 
Nissan to increase the maximum annual volume covered by its current 
exclusion for a F019 listed hazardous waste.
    The Agency is basing its tentative decision to grant the petition 
for amendment on an evaluation of specific information provided by the 
petitioner. This tentative decision, if finalized, would increase the 
annual volume of waste conditionally excluded from the requirements of 
the hazardous waste regulations under the Resource Conservation and 
Recovery Act (RCRA).

DATES: EPA is requesting public comments on this proposed amendment. We 
will accept comments on this proposal until August 8, 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 tentative decision to 
grant the petition for amendment by filing a request by July 11, 2005. 
The request must contain the information prescribed in 40 CFR 
260.20(d).

ADDRESSES: Please send two copies of your comments to Daryl R. Himes, 
South Enforcement and Compliance Section, RCRA Enforcement and 
Compliance Branch, Waste Management Division, U.S. EPA Region 4, 61 
Forsyth Street SW., Atlanta, GA, 30303. Comments may also be sent to 
Daryl R. Himes via email at [email protected].
    Your request for a hearing should be addressed to Narindar M. 
Kumar, Chief, RCRA Enforcement and Compliance Branch, Waste Division, 
U.S. Environmental Protection Agency Region 4, Atlanta Federal Center, 
61 Forsyth Street SW., Atlanta, Georgia 30303.
    The RCRA regulatory docket for this proposed rule is located at the 
offices of U.S. EPA Region 4, 61 Forsyth Street SW., Atlanta, GA, 
30303, and is available for your viewing from 8:30 a.m. to 5 p.m., 
Monday through Friday, except on Federal holidays. Please call Daryl R. 
Himes, at (404) 562-8614 for appointments. The public may copy material 
from the regulatory docket at $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For technical information concerning 
this document, please contact Daryl R. Himes at the address above or at 
(404) 562-8614.

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

I. Background
    A. What Laws and Regulations Give EPA the Authority to Delist 
Waste?
    B. What Waste is Currently Delisted at Nissan?
    C. What Does Nissan Request in Its Petition for Amendment?
II. Disposition of Petition for Amendment
    A. What Information Did Nissan Submit To Support Its Petition 
for Amendment?
    B. How Did EPA Evaluate Risk for the Original November 19, 2001, 
Petition and this Proposed Amendment?
    C. What Conclusion Did EPA Reach?
III. Conditions for Exclusion
    A. What Are the Maximum Allowable Concentrations of Hazardous 
Constituents?
    B. How Frequently Must Nissan Test the Waste and How Must It Be 
Managed Until It Is Disposed?
    C. What Must Nissan Do If the Process Changes?
    D. What Data Must Nissan Submit?
    E. What Happens If Nissan Fails To Meet the Conditions of the 
Exclusion?
IV. Effect on State Authorization
V. Effective Date
VI. Administrative Requirements
VII. Public Comments
    A. How May I as an Interested Party Submit Comments?
    B. How May I Review the Docket or Obtain Copies of the Proposed 
Exclusions?
VIII. Regulatory Impact
IX. Regulatory Flexibility Act
X. Paperwork Reduction Act
XI. Unfunded Mandates Reform Act
XII. Executive Order 13045
XIII. Executive Order 13084
XIV. National Technology Transfer and Advancements Act
XV. Executive Order 13132 Federalism

I. Background

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

    EPA published amended lists of hazardous wastes from nonspecific 
and specific sources on January 16, 1981, as part of its final and 
interim final regulations implementing Section 3001 of RCRA. These 
lists have been amended several times, and are found at 40 CFR 261.31 
and 261.32.
    We list these wastes as hazardous because: (1) They typically and 
frequently exhibit one or more of the characteristics of hazardous 
wastes identified in Subpart C of 40 CFR Part 261 (i.e., ignitability, 
corrosivity, reactivity, and toxicity), or (2) they meet the criteria 
for listing contained in 40 CFR 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, 40 CFR 260.20 and 260.22 provide an exclusion 
procedure which allows a person to demonstrate that a specific listed 
waste from a particular generating facility should not be regulated as 
a hazardous waste, and should, therefore, be delisted.
    According to 40 CFR 260.22(a)(1), in order to have these wastes 
excluded a petitioner must first show that wastes generated at its 
facility do not meet any of the criteria for which the wastes were 
listed. The criteria which we use to list wastes are found in 40 CFR 
261.11. An explanation of how these criteria apply to a particular 
waste is contained in the background document for that listed waste.
    In addition to the criteria that we considered when we originally 
listed the waste, we are also required by the provisions of 40 CFR 
260.22(a)(2) to consider any other factors (including additional 
constituents), if there is a reasonable basis to believe that these 
factors could cause the waste to be hazardous.
    In a delisting petition, the petitioner must demonstrate that the 
waste does not exhibit any of the hazardous waste characteristics 
defined in Subpart C of

[[Page 36548]]

40 CFR Part 261 (i.e., ignitability, corrosivity, reactivity, and 
toxicity), and must present sufficient information for EPA to determine 
whether the waste contains any other constituents at hazardous levels.
    A generator remains obligated under RCRA to confirm that its waste 
remains nonhazardous based on the hazardous waste characteristics 
defined in Subpart C of 40 CFR Part 261 even if EPA has delisted its 
waste.
    We also define residues from the treatment, storage, or disposal of 
listed hazardous wastes and mixtures containing listed hazardous wastes 
as hazardous wastes. (See 40 CFR 261.3(a)(2)(iv) and (c)(2)(i), 
referred to as the ``mixture'' and ``derived-from'' rules, 
respectively.) These wastes are also eligible for exclusion but remain 
hazardous wastes until delisted.

B. What Waste Is Currently Delisted at Nissan?

    Nissan operates a light-duty vehicle manufacturing facility in 
Smyrna, Tennessee. As a result of Nissan's use of aluminum as a 
component of its automobile bodies, Nissan generates a sludge meeting 
the listing definition of F019 at 40 CFR 261.31.
    On October 12, 2000, Nissan petitioned EPA under the provisions in 
40 CFR 260.20 and 260.22 to exclude the F019 sludge, discussed above, 
from hazardous waste regulation.
    In support of its October 12, 2000, petition, Nissan 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 the Agency's evaluation of the 2000 Nissan 
petition is contained in the Proposed Rule and Request for Comments 
published in the Federal Register on November 19, 2001, (223 FR 57918).
    After evaluating public comment on the Proposed Rule, we published 
a final decision in the Federal Register on June 21, 2002, (67 FR 
41287) to exclude the Nissan F019 wastewater treatment sludge from the 
list of hazardous wastes found in 40 CFR 261.31.
    EPA's final decision in 2002 was conditioned on the volume of waste 
identified in the 2001 Nissan petition. Specifically, the exclusion 
granted by EPA is limited to a maximum annual volume of 2400 cubic 
yards. Any additional waste volume in excess of this limit generated by 
Nissan in a calendar year was to have been managed as hazardous waste.

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

    As a result of an increase in wastewater treatment sludge filter 
cake production associated with an increase in vehicle production, 
Nissan petitioned EPA on February 3, 2004, for an amendment to its June 
21, 2002, final exclusion. In its petition, Nissan requested an 
increase in the maximum annual waste volume that is covered by its 
exclusion from 2400 cubic yards to 3500 cubic yards.

II. Disposition of Petition Amendment

A. What Information Did Nissan Submit to Support Its Petition for 
Amendment?

    The exclusion which we granted to Nissan on June, 21, 2002, is a 
conditional exclusion. In order for its exclusion to have remained 
effective, Nissan has performed verification testing on its delisted 
F019 waste water treatment sludge. Constituents tested for by the 
required verification testing were previously identified for Nissan by 
EPA in the June 21, 2002, final exclusion. The constituents identified 
were those detected in initial analysis of Nissan's F019 waste water 
treatment sludge.
    Nissan has submitted its verification testing results to EPA as 
required in the June 21, 2002, Final Rule. A summary of the maximum 
values detected from samples of Nissan's F019 waste for each of 
Nissan's verification testing constituents are presented in Table 1 
below. The values presented were identified from a review of the 
verification testing results as well as the initial testing results 
which were performed to identify the verification testing constituents.

Table 1.--Maximum Total Constituent and Leachate Concentrations \1\ WWTP
                               Filter Cake
------------------------------------------------------------------------
                                   Total constituent     TCLP leachate
     Inorganic constituents       concentration  (mg/ concentration  (mg/
                                          kg)                 l)
------------------------------------------------------------------------
Barium..........................             6600.0               0.18
Cadmium.........................                6.0              <0.010
Chromium........................              160.00             <0.050
Lead............................              390.0              <0.0050
Nickel..........................             4600                <0.050
4-Methyl-phenol ([rho]-cresol)..  ..................              0.31
Bis (2-ethylhexyl) phthalate....  ..................             <0.050
Di-n-octyl phthalate............  ..................             <0.050
Cyanide.........................                3.2               0.0095 
------------------------------------------------------------------------
\1\These levels represent the highest concentration of each constituent
  found in any one sample. These levels do not necessarily represent the
  specific levels found in one sample.
< Denotes that the constituent was not detected at the concentration
  specified in the table.

    The verification testing program specified by the current exclusion 
for Nissan requires leachate constituent analysis for the metal and 
organic constituents. In addition, analysis for totals levels for each 
of the metal constituents as well as cyanide is also currently 
required.
    B. How did EPA evaluate risk for the November 19, 2001, Nissan 
petition and this proposed amendment?
    In the rule proposed on November 19, 2001, and this proposed 
amendment, EPA has determined the delisting levels for Nissan's F019 
waste water treatment plant sludge based on the following: (1) EPA 
Composite Model for Leachate Migration with Transformation Products 
(EPACMTP model) as used in EPA, Region 6's Delisting Risk Assessment 
Software (DRAS); (2) use of DRAS-calculated levels based on Safe 
Drinking Water Act Maximum Contaminant Levels (MCLs) if more 
conservative delisting levels would be obtained; (3) use of the 
Multiple Extraction Procedure (MEP), SW-846 Method 1320, to evaluate 
the long-term resistance of the waste to leaching in a landfill; (4) 
setting limits on total concentrations of constituents in the waste.

[[Page 36549]]

C. What Conclusion Did EPA Reach?

    EPA believes that the information provided by Nissan provides a 
reasonable basis to grant Nissan's petition for an amendment to its 
current delisting. We, therefore, propose to grant Nissan an amendment 
for an increase in waste volume. The data submitted to support the 
petition and the Agency's evaluation show that the constituents in the 
Nissan wastewater treatment sludge filter cake are below health-based 
levels used by the Agency for delisting decision-making even at the 
increased maximum annual waste volume of 3500 cubic yards.
    For this delisting determination, we used information gathered to 
identify plausible exposure routes (i.e., groundwater, surface water, 
air) for hazardous constituents present in the petitioned waste. We 
determined that disposal in a Subtitle D landfill is the most 
reasonable, worst-case disposal scenario for Nissan's petitioned waste. 
We applied the Delisting Risk Assessment Software (DRAS) described 
above to predict the maximum allowable concentrations of hazardous 
constituents that may be released from the petitioned waste after 
disposal, and we determined the potential impact of the disposal of 
Nissan's petitioned waste on human health and the environment. In 
assessing potential risks to groundwater, we used the increased maximum 
waste volume and the maximum measured or calculated leachate 
concentrations as inputs to the DRAS program to estimate the 
constituent concentrations in the groundwater at a hypothetical 
receptor well downgradient from the disposal site. Using an established 
risk level, the DRAS program can back-calculate receptor well 
concentrations (referred to as a compliance-point concentration) using 
standard risk assessment algorithms and Agency health-based numbers.
    EPA Region 4 generally defines acceptable risk levels for the 
delisting program as wastes with an excess cancer risk of no more than 
1 x 10-5 and a hazard quotient of no more than 1.0 for 
individual constituents.
    Using the maximum compliance-point concentrations and the EPACMTP 
fate and transport modeling factors, the DRAS further back-calculates 
the maximum waste constituent concentrations which would not exceed the 
compliance-point concentrations in groundwater.
    The Agency believes that the EPACMTP fate and transport model 
represents a reasonable worst-case scenario for possible groundwater 
contamination resulting from disposal of the petitioned waste in a 
landfill and that a reasonable worst-case scenario is appropriate when 
evaluating whether a waste should be relieved of the protective 
management constraints of the RCRA Subtitle C program. The use of a 
reasonable worst-case scenario results in conservative values for the 
compliance-point concentrations and ensures that the waste, once 
removed from hazardous waste regulation, will not pose a significant 
threat to human health or the environment.
    Similarly, the DRAS used the increased waste volume requested in 
the petition and the maximum reported total concentrations to predict 
possible risks associated with releases of waste constituents through 
surface pathways (e.g., volatilization or wind-blown particulate from 
the landfill). As in the groundwater analyses, the DRAS uses the 
established acceptable risk level, the health-based data, and standard 
risk assessment and exposure algorithms to predict maximum compliance-
point concentrations of waste constituents at a hypothetical point of 
exposure. Using fate and transport equations, the DRAS uses the maximum 
compliance-point concentrations and back-calculates the maximum 
allowable waste constituent concentrations. In most cases, because a 
delisted waste is no longer subject to hazardous waste control, the 
Agency is generally unable to predict, and does not presently control, 
how a petitioner will manage a waste after it is excluded. Therefore, 
we believe that it is inappropriate to consider extensive site-specific 
factors when applying the fate and transport model.
    As a condition of Nissan's current delisting, Nissan must continue 
to test for a list of verification constituents. Based on the increased 
waste volume requested in the petition, new proposed maximum allowable 
leachate concentrations and maximum allowable total constituent 
concentrations (as explained below) for these constituents were derived 
by back-calculating from the delisting health-based levels through the 
proposed fate and transport model for a landfill management scenario. 
The maximum allowable concentration of the verification constituents, 
both in leachate and totals levels, were recalculated for each of the 
current verification constituents. These concentration limits are shown 
in Table 2 below.

Table 2.--Maximum Allowable Concentration of Constituents in Leachate or
                              in Waste \1\
------------------------------------------------------------------------
                                    Maximum allowable  Maximum allowable
                                         leachate            total
            Constituent               concentration      concentration
                                          (mg/l)            (mg/kg)
------------------------------------------------------------------------
Barium............................           1.00e+02           6.16e+07
Cadmium...........................           1.00e+00           6.43e+05
Chromium..........................           5.00e+00           1.93e+09
Lead..............................           5.00e+00           4.56e+05
Nickel............................           6.07e+01           2.57e+07
Cyanide...........................           7.73e+00           2.57e+07
Bis(2-ethylhexyl)phthalate........           6.01e-01  .................
[rho]-Cresol......................           7.66e+00  .................
Di-n-octyl phthalate..............           7.52e-02  .................
------------------------------------------------------------------------
\1\The term ``e'' in the table is a variation of ``scientific notation''
  in base 10 exponential form and is used in this table because it is a
  convenient way to represent very large or small numbers. For example,
  3.00e-03 is equivalent to 3.00 x 10-\3\ and represents the number
  0.003.

    The Final Rule published in the Federal Register on June 21, 2002, 
(67 FR 41287) included maximum allowable total concentration limits for 
each of the inorganic constituents and cyanide for which Nissan would 
be required to perform verification testing results. Upon a comparative 
review of the maximum total constituent levels analyzed for as shown in 
Table 1 to the maximum allowable levels of these constituents as 
calculated by the DRAS model, EPA is proposing to remove the 
requirement from the June 21, 2002, Final Rule which requires Nissan to

[[Page 36550]]

analyze its verification samples for the currently specified total 
values. This proposal is being made based upon a comparison made by EPA 
between the results of such totals analysis shown in Table 1 as 
compared to the totals levels calculated for these constituents by the 
DRAS model in Table 2. The maximum allowable verification levels for 
total constituent levels shown in Table 2 are in excess of an order of 
magnitude of three (10\3\) times greater than the results of the sample 
analysis performed by Nissan for totals values shown in Table 1.

III. Conditions for Exclusion

A. What Are the Maximum Allowable Concentrations of Hazardous 
Constituents?

    The following table (Table 3) summarizes the maximum allowable 
constituent concentrations (delisting levels) which EPA is proposing 
for Nissan's waste. We recalculated these delisting levels for each 
constituent that is part of Nissan's current delisting using the DRAS 
and the increased maximum annual waste volume of 3500 cubic yards. 
These proposed delisting levels were derived from the health-based 
calculations performed by the DRAS program using either strict health-
based levels or MCLs, or from Toxicity Characteristic regulatory 
levels, whichever resulted in a lower (i.e., more conservative) 
concentration.

Table 3.--Maximum Allowable Concentration of Constituents in Leachate or
                              in Waste \1\
------------------------------------------------------------------------
                                                       Maximum allowable
                                                            leachate
                     Constituent                         concentration
                                                             (mg/l)
------------------------------------------------------------------------
Barium...............................................           1.00e+02
Cadmium..............................................           1.00e+00
Chromium.............................................           5.00e+00
Lead.................................................           5.00e+00
Nickel...............................................           6.07e+01
Cyanide..............................................           7.73e+00
Bis(2-ethylhexyl)phthalate...........................           6.01e-01
[rho]-Cresol.........................................           7.66e+00
Di-n-octyl phthalate.................................          7.52e-02
------------------------------------------------------------------------
\1\The term ``e'' in the table is a variation of ``scientific notation''
  in base 10 exponential form and is used in this table because it is a
  convenient way to represent very large or small numbers. For example,
  3.00e-03 is equivalent to 3.00 X 10-\3\ and represents the number
  0.003.

    The current maximum allowable constituent concentrations (delisting 
levels) for Nissan as found in 40 CFR 261 Appendix IX, Table 1, are 
specified as leachate concentrations for inorganic and organic 
constituents and cyanide, and as total constituent concentrations for 
inorganic constituents for reasons set forth previously in the Proposed 
Rule published in the Federal Register on November 19, 2001 (223 FR 
57918).

B. How Frequently Must Nissan Test the Waste and How Must It Be Managed 
Until It Is Disposed?

    Nissan must continue to test and manage its waste according to the 
conditions set forth in its current delisting. We are not proposing in 
this amendment to change the method of sample collection, the frequency 
of sample analyses or the waste holding procedures currently specified 
in EPA's final decision in the Federal Register on June 21, 2002, (67 
FR 41287), except the total constituent analyses, which no longer will 
be required.

C. What Must Nissan Do If the Process Changes?

    We are not proposing to change the conditions regarding process 
changes as set forth in EPA's final decision in the Federal Register on 
June 21, 2002, (67 FR 41287).

D. What Data Must Nissan Submit?

    We are not proposing to change the data Nissan is required to 
submit as specified in EPA's final decision in the Federal Register on 
June 21, 2002, (67 FR 41287).

E. What Happens If Nissan Fails to Meet the Conditions of the 
Exclusion?

    We are not proposing to change the reopener language Nissan is 
required to comply with as specified in EPA's final decision in the 
Federal Register on June 21, 2002, (67 FR 41287).

IV. Effect on State Authorizations

    This proposed amendment, if promulgated, would be issued under the 
Federal RCRA delisting program. States, however, may impose more 
stringent regulatory requirements than EPA 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 State. 
Because a petitioner's waste may be regulated under a dual system 
(i.e., both Federal (RCRA) and State (RCRA) or State (non-RCRA) 
programs), petitioners are urged to contact State 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 amendment, if 
promulgated, may not apply in those authorized States, unless it is 
adopted by the State. If the petitioned waste is managed in any State 
with delisting authorization, Nissan must obtain delisting 
authorization from that State before the waste may be managed as 
nonhazardous in that State.

V. Effective Date

    EPA is today making a tentative decision to grant Nissan's petition 
for amendment. This proposed rule, if made final, will become effective 
immediately upon such 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 a facility generating hazardous wastes. 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

[[Page 36551]]

immediately upon final publication. These reasons also provide a basis 
for making this rule effective immediately, upon final publication, 
under the Administrative Procedures Act, 5 U.S.C. 553(d).

VI. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a rule of general applicability and therefore is not a 
``regulatory action'' subject to review by the Office of Management and 
Budget. Because this action is a rule of particular applicability 
relating to a particular facility, it is not subject to the regulatory 
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.), or to sections 202, 203, and 205 of the Unfunded Mandates 
Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because the rule will affect 
only one facility, it will not significantly or uniquely affect small 
governments, as specified in section 203 of UMRA, or communities of 
Indian tribal governments, as specified in Executive Order 13175 (65 FR 
67249, November 6, 2000). For the same reason, this rule will not 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, as 
specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This 
rule also is not subject to Executive Order 13045 (62 FR 19885, April 
23, 1997), because it is not economically significant.
    This rule does not involve technical standards; thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272) do not apply. As required by 
section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in 
issuing this rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

VII. Public Comments

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

    The EPA is requesting public comments on this proposed decision. 
Please send three copies of your comments. Send two copies to the 
Chief, North Section, RCRA Enforcement and Compliance Branch, U.S. 
Environmental Protection Agency Region 4, Atlanta Federal Center, 61 
Forsyth Street SW., Atlanta, Georgia 30303. Send a third copy to Mr. 
Mike Apple, Director, Division of Solid Waste Management, Tennessee 
Department of Environment and Conservation, 5th Floor, L&C Tower, 401 
Church Street, Nashville, Tennessee 37243-1535. You should identify 
your comments at the top with this regulatory docket number: R$DLP-
0401-Nissan.
    You should submit requests for a hearing to Narrindar M. Kumar, 
Chief, RCRA Enforcement and Compliance Branch, Waste Division, U.S. 
Environmental Protection Agency Region 4, Atlanta Federal Center, 61 
Forsyth Street SW., Atlanta, Georgia 30303.

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

    You may review the RCRA regulatory docket for this proposed rule at 
the U.S. Environmental Protection Agency Region 4, Atlanta Federal 
Center, 61 Forsyth Street SW., Atlanta, Georgia 30303.
    It is available for viewing in the EPA Freedom of Information Act 
Review Room from 9 a.m. to 4 p.m., Monday through Friday, excluding 
Federal holidays. Call (404) 562-8614 for appointments. The public may 
copy material from any regulatory docket at no cost for the first 100 
pages, and at fifteen cents per page for additional copies.

VIII. Regulatory Impact

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

IX. Regulatory Flexibility Act

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

X. 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.

XI. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(UMRA), Public Law 104-4, which was signed into law on March 22, 1995, 
the EPA generally must prepare a written statement for rules with 
Federal mandates that may result in estimated costs to State, local, 
and tribal governments in the aggregate, or to the private sector, of 
$100 million or more in any one year.
    When such a statement is required for the EPA rules under section 
205 of the UMRA, the EPA must identify and consider alternatives. The 
alternatives must include the least costly, most cost-effective, or 
least burdensome alternative that achieves the objectives of the rule. 
The EPA must select that alternative, unless the Administrator explains 
in the final rule why it was not selected or it is inconsistent with 
law.
    Before the EPA establishes regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must develop under section 203 of the UMRA

[[Page 36552]]

a small government agency plan. The plan must provide for notifying 
potentially affected small governments, giving them meaningful and 
timely input in the development of the EPA's regulatory proposals with 
significant Federal intergovernmental mandates, and informing, 
educating, and advising them on compliance with the regulatory 
requirements.
    The UMRA generally defines a Federal mandate for regulatory 
purposes as one that imposes an enforceable duty upon state, local, or 
tribal governments or the private sector.
    The EPA finds that this delisting decision is deregulatory in 
nature and does not impose any enforceable duty on any State, local, or 
tribal governments or the private sector. In addition, the proposed 
delisting decision does not establish any regulatory requirements for 
small governments and so does not require a small government agency 
plan under UMRA section 203.

XII. Executive Order 13045

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

XIII. Executive Order 13084

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

XIV. National Technology Transfer and Advancement Act

    Under section 12(d) of the National Technology Transfer and 
Advancement Act, the EPA is directed to use voluntary consensus 
standards in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, business practices, 
etc.) developed or adopted by voluntary consensus standard bodies. 
Where available and potentially applicable voluntary consensus 
standards are not used by the EPA, the Act requires that the EPA 
provide Congress, through the OMB, an explanation of the reasons for 
not using such standards.
    This rule does not establish any new technical standards and thus, 
the EPA has no need to consider the use of voluntary consensus 
standards in developing this final rule.

XV. Executive Order 13132 Federalism

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

List of Subjects in 40 CFR Part 261

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

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

    Dated: June 9, 2005.
Jon D. Johnston,
Acting Director, Waste Management Division, Region 4.
    For the reasons set out in the preamble, 40 CFR part 261 is amended 
as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

    2. In Table 1 of appendix IX, part 261 add the following 
wastestream in alphabetical order by facility to read as follows:
    Appendix IX--Wastes Excluded Under Secs. 260.20 and 260.22.

[[Page 36553]]



                               Table 1.--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
             Facility                             Address                           Waste description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Nissan North America, Inc.........  Smyrna, Tennessee.................  Wastewater treatment sludge (EPA
                                                                         Hazardous Waste No. F019) that Nissan
                                                                         North America, Inc. (Nissan) generates
                                                                         by treating wastewater from the
                                                                         automobile assembly plant located at
                                                                         983 Nissan Drive in Smyrna, Tennessee.
                                                                         This is a conditional exclusion for up
                                                                         to 3,500 cubic yards of waste
                                                                         (hereinafter referred to as ``Nissan
                                                                         Sludge'') that will be generated each
                                                                         year and disposed in a Subtitle D
                                                                         landfill after [Publication Date of the
                                                                         Final Rule]. Nissan must continue to
                                                                         demonstrate that the following
                                                                         conditions are met for the exclusion to
                                                                         be valid.
                                                                        (1) Delisting Levels: All leachable
                                                                         concentrations for these metals,
                                                                         cyanide, and organic constituents must
                                                                         not exceed the following levels (ppm):
                                                                         Barium--100.0; Cadmium--0.422;
                                                                         Chromium--5.0; Cyanide--7.73, Lead--
                                                                         5.0; and Nickel--60.7; Bis--(2-
                                                                         ethylhexyl) phthalate--0.601; Di-n-
                                                                         octyl phthalate--0.0752; and 4-
                                                                         Methylphenol--7.66. These
                                                                         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) 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 Nissan
                                                                         Sludge meet the delisting levels in
                                                                         Condition (1). Nissan must perform an
                                                                         annual testing program to demonstrate
                                                                         that the constituent concentrations
                                                                         measured in the TCLP extract do not
                                                                         exceed the delisting levels established
                                                                         in Condition (1).
                                                                        If the levels of constituents measured
                                                                         in Nissan's annual testing program do
                                                                         not exceed the levels set forth in
                                                                         Condition (1), then the Nissan 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 Nissan
                                                                         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:
                                                                         Nissan 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 Nissan
                                                                         in writing that the Nissan Sludge must
                                                                         be managed as hazardous waste F019
                                                                         until Nissan 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 Nissan has
                                                                         received written approval from EPA. If
                                                                         EPA determines that the changes do not
                                                                         result in additional constituents of
                                                                         concern, EPA will notify Nissan, in
                                                                         writing, that Nissan must verify that
                                                                         the Nissan Sludge continues to meet
                                                                         Condition (1) delisting levels.
                                                                        (5) Data Submittals: Data obtained in
                                                                         accordance with Condition (2) must be
                                                                         submitted to Narindar M. Kumar, Chief,
                                                                         RCRA Enforcement and Compliance Branch,
                                                                         Mail Code: 4WD-RCRA, U.S. EPA, Region
                                                                         4, Sam Nunn Atlanta Federal Center, 61
                                                                         Forsyth Street, SW., Atlanta, Georgia
                                                                         30303. The submission is due no later
                                                                         than 60 days after taking each annual
                                                                         verification samples in accordance with
                                                                         delisting Conditions (1) through (7).
                                                                         Records of analytical data from
                                                                         Condition (2) must be compiled,
                                                                         summarized, and maintained by Nissan
                                                                         for a minimum of three years, and must
                                                                         be furnished upon request by EPA or the
                                                                         State of Tennessee, and made available
                                                                         for inspection. Failure to submit the
                                                                         required data within the specified time
                                                                         period or 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 36554]]

 
                                                                        (6) Reopener Language: (A) If, at any
                                                                         time after disposal of the delisted
                                                                         waste, Nissan 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, Nissan
                                                                         must report the data, in writing, to
                                                                         EPA 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)(B), does not
                                                                         meet the delisting requirements of
                                                                         Condition (1), Nissan must report the
                                                                         data, in writing, to EPA 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 Nissan with an
                                                                         opportunity to present information as
                                                                         to why the proposed action is not
                                                                         necessary. Nissan shall have 10 days
                                                                         from the date of EPA's notice to
                                                                         present such information.
                                                                        (E) Following the receipt of information
                                                                         from Nissan, 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: Nissan
                                                                         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.
 
                                                  * * * * * * *
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[FR Doc. 05-12579 Filed 6-23-05; 8:45 am]
BILLING CODE 6560-50-P