[Federal Register Volume 77, Number 178 (Thursday, September 13, 2012)]
[Rules and Regulations]
[Pages 56558-56563]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-22571]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R01-RCRA-2012-0447; FRL-9727-2]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is granting the 
petition submitted by International Business Machines Corporation (IBM) 
to exclude or ``delist'' a certain wastewater treatment sludge 
generated by its facility in Essex Junction, Vermont from the lists of 
hazardous wastes. This final rule responds to a petition submitted by 
IBM to delist F006 waste. The F006 waste is sludge generated from IBM's 
Industrial Waste Treatment Plant (IWTP).
    After careful analysis and use of the Delisting Risk Assessment 
Software (DRAS), EPA has concluded the petitioned waste is not 
hazardous waste. The F006 exclusion is a conditional exclusion for 
3,150 cubic yards per year of the F006 wastewater treatment sludge.
    Accordingly, this final rule excludes the petitioned waste from the 
requirements of hazardous waste regulations under the Resource 
Conservation and Recovery Act (RCRA).

DATES: Effective Date: This final rule is effective on September 13, 
2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R01-RCRA-2012-0447. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g. CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through 
www.regulations.gov or in hard copy at the EPA Region 1 Library, 5 Post 
Office Square, 1st floor, Boston, MA 02109-3912; by appointment only; 
tel: (617) 918-1990. 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: Sharon Leitch, RCRA Waste Management 
and UST Section, Office of Site Remediation and Restoration, (Mail 
Code: OSRR07-01), EPA Region 1, 5 Post Office Square, Suite 100, 
Boston, MA 02109-3912; telephone number: (617) 918-1647; fax number 
(617) 918-0647; email address: [email protected].

SUPPLEMENTARY INFORMATION: The information in this section is organized 
as follows:
I. Overview Information
    A. What action is EPA finalizing?
    B. Why is EPA approving this action?
    C. What are the limits of this exclusion?
    D. How will IBM manage the waste, when delisted?
    E. When is the final delisting exclusion effective?
    F. How does this final rule affect states?
II. Background
    A. What is a delisting petition?
    B. What regulations allow facilities to delist a waste?
    C. What information must the generator supply?
III. EPA's Evaluation of the Waste Information and Data
    A. What waste did IBM petition EPA to delist?
    B. How much waste did IBM propose to delist?
    C. How did IBM sample and analyze the waste data in this 
petition?
IV. Public Comments Received on the Proposed Exclusions

[[Page 56559]]

    A. Who submitted comments on the proposed rules?
    B. What was the comment and what was EPA's response?
V. Statutory and Executive Order Reviews

I. Overview Information

A. What action is EPA finalizing?

    After evaluating the petition for IBM, EPA proposed, on July 16, 
2012 (77 FR 41720), to exclude the waste from the lists of hazardous 
waste under Sec.  261.31. EPA is finalizing the decision to grant IBM's 
delisting petition to have its F006 wastewater treatment sludge 
excluded, or delisted, from the definition of a hazardous waste, once 
it is disposed in a Subtitle D landfill.

B. Why is EPA approving this action?

    IBM's petition requests a delisting from the F006 waste listing 
under 40 CFR 260.20 and 260.22. IBM does not believe that the 
petitioned waste meets the criteria for which EPA listed it. IBM also 
believes no additional constituents or factors could cause the waste to 
be hazardous. EPA's review of this petition included consideration of 
the original listing criteria, and the additional factors required by 
the Hazardous and Solid Waste Amendments of 1984 (HSWA). See Section 
3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4) 
(hereinafter all sectional references are to 40 CFR unless otherwise 
indicated). In making the final delisting determination, EPA evaluated 
the petitioned waste against the listing criteria and factors cited in 
Sec.  261.11(a)(2) and (a)(3). Based on this review, EPA agrees with 
the petitioner that the waste is nonhazardous with respect to the 
original listing criteria. (If EPA had found, based on this review, 
that the waste remained hazardous based on the factors for which the 
waste was originally listed, EPA would have proposed to deny the 
petition). EPA evaluated the waste with respect to other factors or 
criteria to assess whether there is a reasonable basis to believe that 
such additional factors could cause the wastes to be hazardous. EPA 
considered whether the waste is acutely toxic, the concentrations of 
the constituents in the waste, their tendency to migrate and to 
bioaccumulate, their persistence in the environment once released from 
the waste, plausible and specific types of management of the petitioned 
waste, the quantities of waste generated, and waste variability. EPA 
believes that the petitioned waste does not meet the listing criteria 
and thus should not be a listed waste. EPA's final decision to delist 
the waste from IBM's facility is based on the information submitted in 
support of this rule, including a description of the waste and 
analytical data from the Essex Junction, Vermont facility.

C. What are the limits of this exclusion?

    This exclusion applies to the waste described in IBM's petition 
only if the requirements described in 40 CFR part 261, Appendix IX, 
Table 1 and the conditions contained herein are satisfied.

D. How will IBM manage the waste, when delisted?

    The delisted F006 wastewater treatment sludge will be disposed of 
in a Subtitle D landfill which is permitted, licensed or otherwise 
authorized by a state to manage industrial waste.

E. When is the final delisting exclusion effective?

    This rule is effective September 13, 2012. The Hazardous and Solid 
Waste Amendments of 1984 amended Section 3010 of RCRA, 42 U.S.C. 
6930(b)(1), allow rules to become effective in less than six months 
after the rule is published when the regulated community does not need 
the six-month period to come into compliance. That is the case here 
because this rule reduces, rather than increases, the existing 
requirements for persons generating hazardous waste. This reduction in 
existing requirements also provides a basis for making this rule 
effective immediately, upon publication, under the Administrative 
Procedure Act, pursuant to 5 U.S.C. 553(d).

F. How does this final rule affect states?

    EPA is issuing this exclusion under the federal RCRA delisting 
program. Thus, upon the exclusion being finalized, the wastes covered 
will be removed from Subtitle C control under the federal RCRA program. 
This will mean, first, that the wastes will be delisted in any State or 
territory where the EPA is directly administering the RCRA program 
(e.g., Iowa, Indian Country). However, whether the wastes will be 
delisted in States which have been authorized to administer the RCRA 
program will vary depending upon the authorization status of the States 
and the particular requirements regarding delisted wastes in the 
various States.
    While Vermont has been authorized to generally administer the 
federal RCRA program, it has not sought or obtained authorization to 
delist federal listed wastes. See 58 FR 26243 (May 3, 1993). Instead, 
the Vermont Hazardous Waste Regulation section 7-217(c) specifies that 
``the Administrator of EPA shall retain the authority to exclude such 
wastes.'' By letter dated April 12, 2012, the Vermont Department of 
Environmental Conservation has confirmed that Vermont interprets this 
regulation to mean that upon the EPA making a delisting determination 
(regarding a federally regulated waste), the delisting determination 
takes effect within that State. Thus, this delisting determination will 
apply within Vermont with no further action required by the State.
    Like Vermont, some other generally authorized States have not 
received authorization for delisting. Thus, the EPA makes delisting 
determinations for such States. However, RCRA allows states to impose 
their own regulatory requirements that are more stringent than EPA's, 
under Sec.  3009 of RCRA. These more stringent requirements may include 
a provision that prohibits a federally issued exclusion from taking 
effect in the state, or that requires a State concurrence before the 
federal exclusion takes effect, or that allows the State to add 
conditions to any federal exclusion. We urge the petitioner to contact 
the state regulatory authority in each State to or through which it may 
wish to ship its wastes to establish the status of its wastes under the 
state's laws.
    EPA has also authorized some states to administer a delisting 
program in place of the federal program, that is, to make state 
delisting decisions. In such states, the state delisting requirements 
operate in lieu of the federal delisting requirements. Therefore, this 
exclusion does not apply in those authorized states unless the state 
makes the rule part of its authorized program. If IBM transports the 
federally excluded waste to or manages the waste in any state with 
delisting authorization, IBM must obtain a delisting authorization from 
that state before it can manage the waste as non-hazardous in that 
state.

II. Background

A. What is a delisting petition?

    A delisting petition is a request from a generator to EPA or to an 
authorized state to exclude or delist, from the RCRA list of hazardous 
wastes, waste the generator believes should not be considered hazardous 
under RCRA.

B. What regulations allow facilities to delist a waste?

    Under Sec. Sec.  260.20 and 260.22, facilities may petition EPA to 
remove their wastes from hazardous waste regulation by excluding them 
from the lists of hazardous wastes contained in Sec. Sec.  261.31 and 
261.32. Specifically, Sec.  260.20 allows any person to petition the 
Administrator to modify or revoke

[[Page 56560]]

any provision of 40 CFR parts 260 through 265 and 268. Section 260.22 
provides generators the opportunity to petition the Administrator to 
exclude a waste from a particular generating facility from the 
hazardous waste lists.

C. What information must the generator supply?

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

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

A. What waste did IBM petition EPA to delist?

    IBM petitioned EPA on July 11, 2008, to exclude from the lists of 
hazardous waste contained in Sec. Sec.  261.31 and 261.32, F006 
wastewater treatment sludge, generated from its facility in Essex 
Junction, Vermont.

B. How much waste did IBM propose to delist?

    IBM requested that EPA grant an exclusion for 3,150 cubic yards per 
year of F006 wastewater treatment sludge.

C. How did IBM sample and analyze the waste data in this petition?

    To support its petition, IBM submitted: (1) Facility information on 
production processes and waste generation processes; (2) Historical 
sampling data of the IWTP sludge; (3) Analytical results from four 
samples for total concentrations for volatiles (SW-846 Method 8260B), 
semi volatiles (SW-846 Method 8270C) and metals (SW-846 Method 6010B 
except for mercury--SW-846 Method 7471A and selenium--SW-846 Method 
7010), for compounds of concern (COCs); and (4) Analytical results from 
four samples for Toxicity Characteristic Leaching Procedure (TCLP) 
extract values for volatiles (SW-846 Method 8260B), semi volatiles (SW-
846 Method 8270C) and metals (SW-846 Method 6010B except for mercury--
SW-846 Method 7470 and selenium--SM 3113B) for COCs.

IV. Public Comments Received on the Proposed Exclusion

A. Who submitted comments on the proposed rule?

    EPA received one email comment from a consultant regarding the 
petition.

B. What was the comment and what was EPA's response?

    Comment: Based on the condition that the resultant sludge is a 
combination of three (3) independent waste streams (i.e. it appears 
each waste stream is being diluted by two(2) other waste streams) it 
would be prudent to require IBM to submit to EPA, or the landfill, 
monthly waste rates from each of the three (3) independent waste 
streams to ensure the contribution ratios are not dramatically 
changing.
    The removal of one waste process could potentially increase the 
hazardous components by 50% from the other 2 waste streams. If volume 
of sludge waste is a component in EPA's calculations related to overall 
impact, then the increase, or reduction of a waste stream could impact 
the results.
    Response: EPA believes that the requirements found in Conditions 4, 
5 and 6 of the final exclusion adequately address any changes in 
operations or processes at the facility that could have an impact on 
the composition of the delisted sludge.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this rule is not of general applicability 
and therefore is not a regulatory action subject to review by the 
Office of Management and Budget (OMB). 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.) because it applies to a 
particular facility only. Because this rule is 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, 204, and 205 of the 
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because 
this rule will affect only a particular facility, it will not 
significantly or uniquely affect small governments, as specified in 
Section 203 of UMRA. Because this rule will affect only a particular 
facility, this final rule does not have federalism implications. It 
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, ``Federalism,'' (64 
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply 
to this rule. Similarly, because this rule will affect only a 
particular facility, this final rule does not have tribal implications, 
as specified in Executive Order 13175, ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000). Thus, 
Executive Order 13175 does not apply to this rule. This rule also is 
not subject to Executive Order 13045, ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), because it is not economically significant as defined in 
Executive Order 12866, and because the Agency does not have reason to 
believe the environmental health or safety risks addressed by this 
action present a disproportionate risk to children. The basis for this 
belief is that the Agency used the DRAS program, which considers health 
and safety risks to children, to calculate the maximum allowable 
concentrations for this rule. This rule is not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001), 
because it is not a significant regulatory action under Executive Order 
12866. 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 note) do not apply. As required 
by Section 3 of Executive Order 12988, ``Civil Justice Reform,'' (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.
    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 the Congress and to the Comptroller General of the United 
States. Section 804 exempts from Section 801 the following types of 
rules (1) Rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency

[[Page 56561]]

parties (5 U.S.C. 804(3)). EPA is not required to submit a rule report 
regarding today's action under Section 801 because this is a rule of 
particular applicability. Executive Order (EO) 12898 (59 FR 7629 (Feb. 
16, 1994)) establishes federal executive policy on environmental 
justice. Its main provision directs federal agencies, to the greatest 
extent practicable and permitted by law, to make environmental justice 
part of their mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority 
populations and low-income populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The Agency's risk assessment did not identify risks from 
management of this material in a Subtitle D landfill. Therefore, EPA 
believes that any populations in proximity of the landfills used by 
this facility should not be adversely affected by common waste 
management practices for this delisted waste.

List of Subjects in 40 CFR Part 261

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

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

    Dated: August 22, 2012.
H. Curtis Spalding,
Regional Administrator, EPA Region 1.
    For the reasons set out in the preamble, 40 CFR part 261 is amended 
as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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


0
2. In Table 1 of Appendix IX to Part 261 add the following waste stream 
in alphabetical order by facility to read as follows:

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

                               Table 1--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
             Facility                     Address                           Waste description
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                                                  * * * * * * *
IBM Corporation..................  Essex Junction, VT..  Wastewater Treatment Sludge (Hazardous Waste No. F006)
                                                          generated at a maximum annual rate of 3,150 cubic
                                                          yards per calendar year and disposed of in a Subtitle
                                                          D Landfill which is licensed, permitted, or otherwise
                                                          authorized by a state to accept the delisted
                                                          wastewater treatment sludge. IBM must implement a
                                                          testing program that meets the following conditions
                                                          for the exclusion to be valid:
                                                         1. Delisting Levels: (A) All leachable concentrations
                                                          for the following constituents must not exceed the
                                                          following levels (mg/L for TCLP): Arsenic--5.0;
                                                          Barium--100.0; Cadmium--1.0; Chromium--5.0; Lead--5.0;
                                                          Mercury--0.2; and, Nickel--32.4.
                                                         2. Waste Handling and Holding: (A) IBM must manage as
                                                          hazardous all WWTP sludge generated until it has
                                                          completed initial verification testing described in
                                                          paragraph (3)(A) and valid analyses show that
                                                          paragraph (1) is satisfied and written approval is
                                                          received by EPA.
                                                         (B) Levels of constituents measured in the samples of
                                                          the WWTP sludge that do not exceed the levels set
                                                          forth in paragraph (1) for two consecutive quarterly
                                                          sampling events are non-hazardous. After approval is
                                                          received from EPA, IBM can manage and dispose of the
                                                          non-hazardous WWTP sludge according to all applicable
                                                          solid waste regulations.
                                                         (C) Not withstanding having received the initial
                                                          approval from EPA, if constituent levels in a later
                                                          sample exceed any of the Delisting Levels set in
                                                          paragraph (1), from that point forward, IBM must treat
                                                          all the waste covered by this exclusion as hazardous
                                                          until it is demonstrated that the waste again meets
                                                          the levels in paragraph (1). IBM must manage and
                                                          dispose of the waste generated under Subtitle C of
                                                          RCRA from the time that it becomes aware of any
                                                          exceedance.
                                                         3. Verification Testing Requirements: IBM must perform
                                                          sample collection and analyses in accordance with the
                                                          approved Quality Assurance Project Plan dated January
                                                          27, 2011. All samples shall be representative
                                                          composite samples according to appropriate methods. As
                                                          applicable to the method-defined parameters of
                                                          concern, analyses requiring the use of SW-846 methods
                                                          incorporated by reference in 40 CFR 260.11 must be
                                                          used without substitution. As applicable, the SW-846
                                                          methods might include Methods 0010, 0011, 0020, 0023A,
                                                          0030, 0031, 0040, 0050, 0051, 0060, 0061, 1010A,
                                                          1020B,1110A, 1310B, 1311, 1312, 1320, 1330A, 9010C,
                                                          9012B, 9040C, 9045D, 9060A, 9070A (uses EPA Method
                                                          1664, Rev. A), 9071B, and 9095B. Methods must meet
                                                          Performance Based Measurement System Criteria in which
                                                          the Data Quality Objectives are to demonstrate that
                                                          samples of the IBM sludge are representative for all
                                                          constituents listed in paragraph (1). To verify that
                                                          the waste does not exceed the specified delisting
                                                          concentrations, for one year after the final exclusion
                                                          is granted, IBM must perform quarterly analytical
                                                          testing by sampling and analyzing the WWTP sludge as
                                                          follows:
                                                         (A) Quarterly Testing: (i) Collect two representative
                                                          composite samples of the WWTP sludge at quarterly
                                                          intervals after EPA grants the final exclusion. The
                                                          first composite samples must be taken within 30 days
                                                          after EPA grants the final approval. The second set of
                                                          samples must be taken at least 30 days after the first
                                                          set.
                                                         (ii) Analyze the samples for all constituents listed in
                                                          paragraph (1). Any waste regarding which a composite
                                                          sample is taken that exceeds the delisting levels
                                                          listed in paragraph (1) for the sludge must be
                                                          disposed as hazardous waste in accordance with the
                                                          applicable hazardous waste requirements from the time
                                                          that IBM becomes aware of any exceedance.

[[Page 56562]]

 
                                                         (iii) Within thirty (30) days after taking each
                                                          quarterly sample, IBM will report its analytical test
                                                          data to EPA. If levels of constituents measured in the
                                                          samples of the sludge do not exceed the levels set
                                                          forth in paragraph (1) of this exclusion for two
                                                          consecutive quarters, and EPA concurs with those
                                                          findings, IBM can manage and dispose the non-hazardous
                                                          sludge according to all applicable solid waste
                                                          regulations.
                                                         (B) Annual Testing: (i) If IBM completes the quarterly
                                                          testing specified in paragraph (3) above and no sample
                                                          contains a constituent at a level which exceeds the
                                                          limits set forth in paragraph (1), IBM may begin
                                                          annual testing as follows: IBM must test two
                                                          representative composite samples of the wastewater
                                                          treatment sludge (following the same protocols as
                                                          specified for quarterly sampling, above) for all
                                                          constituents listed in paragraph (1) at least once per
                                                          calendar year.
                                                         (ii) The samples for the annual testing taken for the
                                                          second and subsequent annual testing events shall be
                                                          taken within the same calendar month as the first
                                                          annual sample taken.
                                                         (iii) IBM shall submit an annual testing report to EPA
                                                          with its annual test results, within thirty (30) days
                                                          after taking each annual sample. The annual testing
                                                          report also shall include the total amount of waste in
                                                          cubic yards disposed during the calendar year.
                                                         4. Changes in Operating Conditions: If IBM
                                                          significantly changes the manufacturing or treatment
                                                          process described in the petition, or the chemicals
                                                          used in the manufacturing or treatment process, it
                                                          must notify the EPA in writing and may no longer
                                                          handle the wastes generated from the new process as
                                                          non-hazardous unless and until the wastes are shown to
                                                          meet the delisting levels set in paragraph (1), IBM
                                                          demonstrates that no new hazardous constituents listed
                                                          in appendix VIII of part 261 have been introduced, and
                                                          IBM has received written approval from EPA to manage
                                                          the wastes from the new process under this exclusion.
                                                          While the EPA may provide written approval of certain
                                                          changes, if there are changes that the EPA determines
                                                          are highly significant, the EPA may instead require
                                                          IBM to file a new delisting petition.
                                                         5. Data Submittals and Recordkeeping: IBM must submit
                                                          the information described below. If IBM fails to
                                                          submit the required data within the specified time or
                                                          maintain the required records on-site for the
                                                          specified time, EPA, at its discretion, will consider
                                                          this sufficient basis to reopen the exclusion as
                                                          described in paragraph (6). IBM must:
                                                         (A) Submit the data obtained through paragraph (3) to
                                                          the Chief, RCRA Waste Management & UST Section, U.S.
                                                          EPA Region 1, (OSRR07-1), 5 Post Office Square, Suite
                                                          100, Boston, MA 02109-3912, within the time specified.
                                                          All supporting data can be submitted on CD-ROM or some
                                                          comparable electronic media;
                                                         (B) Compile, summarize, and maintain on site for a
                                                          minimum of five years and make available for
                                                          inspection records of operating conditions, including
                                                          monthly and annual volumes of WWTP sludge generated,
                                                          analytical data, including quality control
                                                          information, and copies of the notification(s)
                                                          required in paragraph (7);
                                                         (C) Submit with all data a signed copy of the
                                                          certification statement in 40 CFR 260.22(i)(12).
                                                         6. Reopener Language--(A) If, anytime after disposal of
                                                          the delisted waste, IBM possesses or is otherwise made
                                                          aware of any environmental data (including but not
                                                          limited to leachate data or groundwater monitoring
                                                          data) or any other relevant data to the delisted waste
                                                          indicating that any constituent is at a concentration
                                                          in the leachate higher than the specified delisting
                                                          concentration, then IBM must report such data, in
                                                          writing, to the Regional Administrator and to the
                                                          Vermont Agency of Natural Resources Secretary within
                                                          10 days of first possessing or being made aware of
                                                          that data.
                                                         (B) Based on the information described in paragraph (A)
                                                          and any other information received from any source,
                                                          the Regional Administrator will make a preliminary
                                                          determination as to whether the reported information
                                                          requires Agency action to protect human health or the
                                                          environment. Further action may include suspending, or
                                                          revoking the exclusion, or other appropriate response
                                                          necessary to protect human health and the environment.
                                                         (C) If the Regional Administrator determines that the
                                                          reported information does require Agency action, the
                                                          Regional Administrator will notify IBM in writing of
                                                          the actions the Regional Administrator believes are
                                                          necessary to protect human health and the environment.
                                                          The notice shall include a statement of the proposed
                                                          action and a statement providing IBM with an
                                                          opportunity to present information as to why the
                                                          proposed Agency action is not necessary or to suggest
                                                          an alternative action. IBM shall have 30 days from the
                                                          date of the Regional Administrator's notice to present
                                                          the information.
                                                         (D) If after 30 days IBM presents no further
                                                          information or after a review of any submitted
                                                          information, the Regional Administrator will issue a
                                                          final written determination describing the Agency
                                                          actions that are necessary to protect human health or
                                                          the environment. Any required action described in the
                                                          Regional Administrator's determination shall become
                                                          effective immediately, unless the Regional
                                                          Administrator provides otherwise.
                                                         7. Notification Requirements: IBM must do the following
                                                          before transporting the delisted waste:
                                                         (A) Provide a one-time written notification to any
                                                          state Regulatory Agency to which or through which it
                                                          will transport the delisted waste described above for
                                                          disposal, 60 days before beginning such activities;
                                                         (B) Update the one-time written notification if it
                                                          ships the delisted waste to a different disposal
                                                          facility. Failure to provide this notification will
                                                          result in a violation of the delisting petition and a
                                                          possible revocation of the decision.
 
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[FR Doc. 2012-22571 Filed 9-12-12; 8:45 am]
BILLING CODE 6560-50-P