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

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: February 12, 2001 (Volume 66, Number 29)]
[Proposed Rules]
[Page 9781-9798]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12fe01-14]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-6932-8]

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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule and request for comment.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) today is
proposing to grant a petition submitted by BMW Manufacturing
Corporation, Greer, South Carolina (BMW), to exclude (or ``delist'') a
certain hazardous waste from the list of hazardous wastes. BMW will
generate the petitioned waste by treating wastewater from BMW's
automobile assembly plant when aluminum is one of the metals used to
manufacture automobile bodies. The waste so generated is a wastewater
treatment sludge that meets the definition of F019. BMW petitioned EPA
to grant a generator-specific delisting, because BMW believes that its
F019 waste does not meet the criteria for which this type of waste was
listed. EPA reviewed all of the waste-specific information provided by
BMW, performed calculations, and determined that the waste could be
disposed in a landfill without harming human health and the
environment. Today's proposed rule proposes to grant BMW's petition to
delist its F019 waste, and requests public comment on the proposed
decision. If the proposed delisting becomes a final delisting, BMW's
petitioned waste will no longer be classified as F019, and will not be
subject to regulation as a hazardous waste under Subtitle C of the
Resource Conservation and Recovery Act (RCRA). The waste will still be
subject to local, State, and Federal regulations for nonhazardous solid
wastes.

DATES: EPA is requesting public comments on this proposed decision.
Comments will be accepted until March 29, 2001. Comments postmarked
after the close of the comment period will be stamped ``late.'' These
``late'' comments may not be considered in formulating a final
decision.
Any person may request a hearing on this proposed decision by
filing a request with Richard D. Green, Director of the Waste
Management Division, EPA, Region 4, whose address appears below, by
February 27, 2001. The request must contain the information prescribed
in section 260.20(d).

ADDRESSES: Send two copies of your comments to Jewell Grubbs, Chief,
RCRA Enforcement and Compliance Branch, U.S. Environmental Protection
Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street,
Atlanta, Georgia 30303. Send one copy to Cindy Carter, Appalachia III
District, South Carolina Department of Health and Environmental
Control, 975C North Church Street, Spartanburg, South Carolina 29303.
Identify your comments at the top with this regulatory docket number:
R4-00-01-BMWP. Comments may also be submitted by e-mail to
sophianopoulos.judy@epa.gov. If files are attached, please identify the
format.

[[Page 9782]]

Requests for a hearing should be addressed to Richard D. Green,
Director, Waste Management Division, U.S. Environmental Protection
Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street,
SW., Atlanta, Georgia 30303.
The RCRA regulatory docket for this proposed rule is located at the
EPA Library, U.S. Environmental Protection Agency, Region 4, Sam Nunn
Atlanta Federal Center, 61 Forsyth Street, Atlanta, Georgia 30303, and
is available for viewing from 9 a.m. to 4 p.m., Monday through Friday,
excluding Federal holidays. The docket contains the petition, all
information submitted by the petitioner, and all information used by
EPA to evaluate the petition.
The public may copy material from any regulatory docket at no cost
for the first 100 pages, and at a cost of $0.15 per page for additional
copies.
Copies of the petition are available during normal business hours
at the following addresses for inspection and copying: U.S. EPA, Region
4, Library, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303, (404) 562-8190; and Appalachia III District,
South Carolina Department of Health and Environmental Control, 975C
North Church Street, Spartanburg, South Carolina 29303. The EPA, Region
4, Library is located near the Five Points MARTA station in Atlanta.
The Appalachia III District Office of the South Carolina Department of
Health and Environmental Control is located on North Church Street
between Whitney Road and Mendala, near the Spartanburg Regional Medical
Center. Documents are also available for viewing and downloading at the
Web Site of EPA, Region 4: http://www.epa.gov/region4/index.html At
this site, click on ``Delisting,'' and then on individual documents to
download them.

FOR FURTHER INFORMATION CONTACT: For general and technical information
about this proposed rule, contact Judy Sophianopoulos, South
Enforcement and Compliance Section, (Mail Code 4WD-RCRA), RCRA
Enforcement and Compliance Branch, U.S. Environmental Protection
Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street,
SW., Atlanta, Georgia 30303, (404) 562-8604, or call, toll free, (800)
241-1754, and leave a message, with your name and phone number, for Ms.
Sophianopoulos to return your call.

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

I. Background
A. What Laws and Regulations Give EPA the Authority to Delist
Wastes?
B. How did EPA Evaluate this Petition?
1. What methods for determining delisting levels did EPA use in
the past?
What is the EPACML model and how is it used to calculate
delisting levels?
2. What is the DRAS that uses the new EPACMTP model to calculate
not only delisting levels, but also to evaluate the effects of the
waste on human health and the environment?
3. Why is the EPACMTP an improvement over the EPACML?
4. Has the EPACMTP been formally reviewed?
5. Has EPA modified the EPACMTP as used in the proposed
Hazardous Waste Identification Rule (HWIR)?
6. What modifications to the DRAS have been made since the
proposal in 65 FR 58015-58031, September 27, 2000?
7. What methods is EPA proposing to use to determine delisting
levels for this petitioned waste?
II. Disposition of Delisting Petition
A. Summary of Delisting Petition Submitted by BMW Manufacturing
Corporation, Greer, South Carolina (BMW)
B. What Delisting Levels Did EPA Obtain with the EPACML Model
and with DRAS?
C. How Did EPA Use the Multiple Extraction Procedure (MEP) to
Evaluate This Delisting Petition?
D. Conclusion
III. Limited Effect of Federal Exclusion
Will this Rule Apply in All States?
IV. Effective Date
V. Paperwork Reduction Act
VI. National Technology Transfer and Advancement Act
VII. Unfunded Mandates Reform Act
VIII. Regulatory Flexibility Act, as Amended by the Small Business
Regulatory Enforcement and Fairness Act
IX. Executive Order 12866
X. Executive Order 13045
XI. Executive Order 13084
XII. Submission to Congress and General Accounting Office
XIII. Executive Order 13132

I. Background

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

On January 16, 1981, as part of its final and interim final
regulations implementing section 3001 of RCRA, EPA published an amended
list of hazardous wastes from non-specific and specific sources. This
list has been amended several times, and is published in 40 CFR 261.31
and 261.32. These wastes are listed as hazardous because they exhibit
one or more of the characteristics of hazardous wastes identified in
Subpart C of part 261 (i.e., ignitability, corrosivity, reactivity, and
toxicity) or meet the criteria for listing contained in section
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, sections 260.20 and 260.22
provide an exclusion procedure, allowing persons to demonstrate that a
specific waste from a particular generating facility \1\ should not be
regulated as a hazardous waste.
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\1\ Although no one produces hazardous waste intentionally, many
industrial processes result in the production of hazardous waste, as
well as useful products and services. A ``generating facility'' is a
facility in which hazardous waste is produced, and a ``generator''
is a person who produces hazardous waste or causes hazardous waste
to be produced at a particular place. Please see 40 CFR 260.10 for
regulatory definitions of ``generator,'' ``facility,'' ``person,''
and other terms related to hazardous waste, and 40 CFR part 262 for
regulatory requirements for generators.
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To have their wastes excluded, petitioners must show, first, that
wastes generated at their facilities do not meet any of the criteria
for which the wastes were listed. See section 260.22(a) and the
background documents for the listed wastes. Second, the Administrator
must determine, where he/she has a reasonable basis to believe that
factors (including additional constituents) other than those for which
the waste was listed could cause the waste to be a hazardous waste,
that such factors do not warrant retaining the waste as a hazardous
waste. Accordingly, a petitioner also must demonstrate that the waste
does not exhibit any of the hazardous waste characteristics (i.e.,
ignitability, reactivity, corrosivity, and toxicity), and must present
sufficient information for the EPA to determine whether the waste
contains any other toxicants at hazardous levels. See section
260.22(a), 42 U.S.C. 6921(f), and the background documents for the
listed wastes. Although wastes which are ``delisted'' (i.e., excluded)
have been evaluated to determine whether or not they exhibit any of the
characteristics of hazardous waste, generators remain obligated under
RCRA to determine whether or not their wastes continue to be
nonhazardous based on the hazardous waste characteristics (i.e.,
characteristics which may be promulgated subsequent to a delisting
decision.)
In addition, residues from the treatment, storage, or disposal of
listed hazardous wastes and mixtures containing listed hazardous wastes
are also considered hazardous wastes. See sections 261.3(a)(2)(iv) and
(c)(2)(i), referred to as the ``mixture'' and ``derived-from'' rules,
respectively. Such

[[Page 9783]]

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

B. How Did EPA Evaluate This Petition?

This petition requests a delisting for a hazardous waste listed as
F019. In making the initial delisting determination, EPA evaluated the
petitioned waste against the listing criteria and factors cited in
sections 261.11(a)(2) and (a)(3). Based on this review, the 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 then evaluated the waste with respect to other factors
or criteria to assess whether there is a reasonable basis to believe
that such additional factors could cause the waste to be hazardous. See
section 260.22(a) and (d). The EPA considered whether the waste is
acutely toxic, and considered the toxicity of the constituents, the
concentration of the constituents in the waste, their tendency to
migrate and to bioaccumulate, their persistence in the environment once
released from the waste, plausible and specific types of management of
the petitioned waste, the quantities of waste generated, and waste
variability.
1. What Methods for Determining Delisting Levels Did EPA Use in the
Past?
For this delisting determination, EPA used the information
described in the preceding paragraph to identify plausible exposure
routes (i.e., groundwater, surface water, air) for hazardous
constituents present in the petitioned waste.
What is the EPACML Model and how is it Used to Calculate Delisting
Levels? EPA used the EPA Composite Model for Landfills (EPACML) fate
and transport model, modified for delisting, as one approach for
determining the proposed delisting levels for BMW's waste. See 56 FR
32993-33012, July 18, 1991, for details on the use of the EPACML model
to determine the concentrations of constituents in a waste that will
not result in groundwater contamination. Delisting levels are the
maximum allowable concentrations for hazardous constituents in the
waste, so that disposal in a landfill will not harm human health and
the environment by contaminating groundwater, surface water, or air. A
Subtitle D landfill is a landfill subject to RCRA Subtitle D
nonhazardous waste regulations, and to State and local nonhazardous
waste regulations. If EPA makes a final decision to delist BMW's F019
waste, BMW must meet the delisting levels and dispose of the waste in a
Subtitle D landfill, because EPA determined the delisting levels based
on a landfill model. However, at a future date BMW may beneficially
reuse the waste after receiving approval by the EPA \2\ that reuse is
at least as protective of human health and the environment as disposal
in a landfill. With the EPACML approach, EPA calculated a delisting
level for each hazardous constituent by using the maximum estimated
waste volume to determine a Dilution Attenuation Factor (DAF) from a
table of waste volumes and DAFs previously calculated by the EPACML
model, as modified for delisting. See Table 2 of section II.B. below,
which is adapted from 56 FR 32993-33012, July 18, 1991. The maximum
estimated waste volume is the maximum number of cubic yards of
petitioned waste that BMW estimated it would dispose of each year. The
delisting level for each constituent is equal to the DAF multiplied by
the maximum contaminant level (MCL) which the Safe Drinking Water Act
allows for that constituent in drinking water. The delisting level is a
concentration in the waste leachate that will not cause the MCL to be
exceeded in groundwater underneath a landfill where the waste is
disposed. This method of calculating delisting levels results in
conservative levels that are protective of groundwater, because the
model does not assume that the landfill has the controls required of
Subtitle D landfills.
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\2\ EPA will ask for and respond to public comment before making
a decision on whether the reuse that BMW may propose is at least as
protective of human health and the environment as disposal in a
Subtitle D landfill.
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2. What Is the DRAS That Uses the New EPACMTP Model To Calculate Not
Only Delisting Levels, But Also To Evaluate the Effects of the Waste on
Human Health and the Environment?
The EPA is also proposing to use the Delisting Risk Assessment
Software (DRAS),\3\ developed by EPA, Region 6, to evaluate this
delisting petition. The DRAS uses a new model, called the EPA Composite
Model for Leachate Migration with Transformation Products (EPACMTP).
The EPAMCTP improves on the EPACML model in several ways. EPA is
proposing to use the DRAS to calculate delisting levels and to evaluate
the impact of BMW's petitioned waste on human health and the
environment.
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\3\ For more information on DRAS and EPAMCTP, please see 65 FR
75637-75651, December 4, 2000 and 65 FR 58015-58031, September 27,
2000. The December 4, 2000 Federal Register discusses the key
enhancements of the EPACMTP and the details are provided in the
background documents to the proposed 1995 Hazardous Waste
Identification Rule (HWIR) (60 FR 66344, December 21, 1995). The
background documents are available through the RCRA HWIR FR proposal
docket (60 FR 66344, December 21, 1995)
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Today's proposal provides background information on the mechanics
of the DRAS, and the use of the DRAS in delisting decision-making.
Please see the EPA, Region 6, RCRA Delisting Technical Support Document
(RDTSD) for a complete discussion of the DRAS calculation methods. The
RDTSD, and Federal Registers, 65 FR 75637-75651, December 4, 2000, and
65 FR 58015-58031, September 27, 2000, are the sources of the DRAS
information presented in today's preamble, and are included in the RCRA
regulatory docket for this proposed rule.
The DRAS performs a risk assessment for petitioned wastes that are
disposed of in the two waste management units of concern: surface
impoundments for liquid wastes and landfills for non-liquid wastes.
BMW's petitioned waste is solid, not liquid, and will be disposed

[[Page 9784]]

in a landfill; therefore, only the application of DRAS to landfills
will be discussed in this preamble.
DRAS calculates releases from solid-phase wastes in a landfill,
with the following assumptions: (1) the wastes are disposed in a
Subtitle D landfill and covered with a 2-foot-thick native soil layer;
(2) the landfill is unlined or effectively unlined due to a liner that
will eventually completely fail. The two parameters used to
characterize landfills are (1) area and (2) depth (the thickness of the
waste layer). Data to characterize landfills were obtained from a
nationwide survey of industrial Subtitle D landfills.\4\ Parameters and
assumptions used to estimate infiltration of leachate from a landfill
are provided in the EPACMTP Background Document and User's Guide,
Office of Solid Waste, U.S. EPA, Washington, DC, September 1996.
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\4\ Nationwide Survey of Industrial Subtitle D Landfills,
Westat, 1987
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DRAS uses the EPACMTP model to simulate the fate and transport of
dissolved contaminants from a point of release at the base of a
landfill, through the unsaturated zone and underlying groundwater, to a
receptor well at an arbitrary downstream location in the aquifer (the
rock formation in which the groundwater is located). DRAS evaluates,
with the EPACMTP model, the groundwater exposure concentrations at the
receptor well that result from the chemical release and transport from
the landfill (Application of EPACMTP to Region 6 Delisting Program:
Development of Waste Volume-Specific Dilution Attenuation Factors, U.S.
EPA, August 1996). For the purpose of delisting determinations,
receptor well concentrations for both carcinogens and non-carcinogens
from finite-source degraders and non-degraders are determined with this
model. Delisted waste is a finite source, because in a finite period of
time, the waste's constituents will leach and move out of the landfill.
Please see Paragraph 8. Contaminant Release and Transport Scenario in
section I.B.3. of this preamble.
3. Why Is the EPACMTP an Improvement Over the EPACML?
The EPACMTP includes three major categories of improvements over
the EPACML. The improvements include:
(1) Incorporation of additional fate and transport processes (e.g.,
degradation of chemical constituents; fate and transport of metals);
(2) Use of enhanced flow and transport equations (e.g., for
calculating transport in three dimensions); and
(3) Revision of the Monte Carlo methodology (e.g., to allow use of
site-specific, waste-specific data) (EPACMTP Background Document and
User's Guide, Office of Solid Waste, U.S. EPA, Washington, DC,
September 1996).
A discussion of the key enhancements which have been implemented in
the EPACMTP is presented here and the details are provided in the
background documents to the proposed 1995 Hazardous Waste
Identification Rule (HWIR) (60 FR 66344, December 21, 1995). The
background documents are available through the RCRA HWIR Federal
Register proposal docket (60 FR 66344, December 21, 1995). For
explanations of mathematical and chemical terms used in the discussion,
please contact Judy Sophianopoulos, South Enforcement and Compliance
Section, (Mail Code 4WD-RCRA), RCRA Enforcement and Compliance Branch,
U.S. Environmental Protection Agency, Region 4, Sam Nunn Atlanta
Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303, (404)
562-8604, or call, toll free, (800) 241-1754, and leave a message, with
your name and phone number, for Ms. Sophianopoulos to return your call.
You may also contact her by e-mail: sophianopoulos.judy@epa.gov.
The EPACML accounts for: one-dimensional steady and uniform
advective flow; contaminant dispersion in the longitudinal, lateral,
and vertical directions; and sorption. However, advances in groundwater
fate and transport have been made in recent years and EPA proposes and
requests public comment on the use of the EPACMTP, which is a more
advanced groundwater fate and transport model, for this RCRA delisting.
The EPACML was limited to conditions of uniform groundwater flow.
It could not handle accurately the conditions of significant
groundwater mounding and non-uniform groundwater flow due to a high
rate of infiltration from the waste disposal units. These conditions
increase the transverse horizontal, as well as the vertical, spreading
of a contaminant plume.
The EPACMTP model overcomes the deficiencies of the EPACML in the
following way: The subsurface as modeled with the EPACMTP consists of
an unsaturated zone beneath a landfill and a saturated zone, the
underlying water table aquifer. Contaminants move vertically downward
through the unsaturated zone to the water table. The EPACMTP simulates
one-dimensional, vertically downward flow and transport of contaminants
in the unsaturated zone, as well as two-dimensional or three-
dimensional groundwater flow and contaminant transport in the
underlying saturated zone. The EPACML used a saturated zone module that
was based on a Gaussian distribution of the concentration of a chemical
constituent in the saturated zone. The module also used an
approximation to account for the initial mixing of the contaminant
entering at the water table (saturated zone) underneath the waste unit.
The module accounting for initial mixing in the EPACML could lead to
unrealistic groundwater concentrations. The enhanced EPACMTP model
incorporates a direct linkage between the unsaturated zone and
saturated zone modules which overcomes these limitations of the EPACML.
The following mechanisms affecting contaminant migration are accounted
for in the EPACMTP model: Transport by advection and dispersion,
retardation resulting from reversible linear or nonlinear equilibrium
sorption on the soil and aquifer solid phase, and biochemical
degradation processes. The EPACML did not account for biochemical
degradation, and did not account for sorption as accurately as the
EPACMTP.
The EPACMTP consists of four major components:
(1) A module that performs one-dimensional analytical and numerical
solutions for water flow and contaminant transport in the unsaturated
zone beneath a waste management unit;
(2) A numerical module for steady-state groundwater flow subject to
recharge from the unsaturated zone;
(3) A module of analytical and numerical solutions for contaminant
transport in the saturated zone; and
(4) A Monte Carlo module for assessing the effect of the
uncertainty resulting from variations in model parameters on predicted
receptor well concentrations.
As is true of any model, the EPACMTP is based on a number of
simplifying assumptions that make the model easier to use and that
ensure its computational efficiency. The major simplifying assumptions
used in the EPACMTP are summarized below.
1. Soil and Aquifer Medium Properties. It is assumed that the soil
and aquifer are uniform, porous media and that flow and transport are
described by Darcy's Law \5\ and the advection-dispersion equation \5\,
respectively. The EPACMTP does not account for the presence of
preferential pathways such as fractures and macropores. Although the
aquifer properties are assumed to be uniform,

[[Page 9785]]

the model does allow for anisotropy \5\ in hydraulic conductivity.
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\5\ Definitions: Darcy's Law states that the quantity of
groundwater (Q) moving in an aquifer, expressed as volume of water
per unit of time, is equal to the product of the aquifer's hydraulic
conductivity (K); the cross-sectional area (A) through which the
groundwater moves and which is at a right angle to the direction of
groundwater flow; and the hydraulic gradient (dh/dl): Q=KA(dh/dl).
The advection-dispersion equation indicates that contaminant
transport is dependent on soil properties, such as bulk density,
porosity, volumetric water content, and fraction of organic carbon;
contaminant properties, such as solubility in water, diffusion
coefficient in air, strength of binding to soil organic carbon,
Henry's Law Constant, (the ratio of a contaminant's concentration in
air to its concentration in water), and; site properties, such as
recharge rate, contaminant concentrations in recharge, depth to
groundwater, and dimensions of modeled layer. Anistropy is a
condition where properties are not the same in every direction.
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2. Flow in the Unsaturated Zone. Flow in the unsaturated zone is
assumed to be steady-state, one-dimensional, vertical flow from beneath
the source toward the water table. The lower boundary of the
unsaturated zone is assumed to be the water table. The flow in the
unsaturated zone is assumed to be predominantly gravity-driven, and
therefore the vertical flow component accounts for most of the fluid
flux between the source and the water table. The flow rate is assumed
to be determined by the long-term average infiltration rate through the
landfill.
3. Flow in the Saturated Zone. The saturated zone module of the
EPACMTP is designed to simulate flow in an unconfined aquifer with
constant saturated thickness. The model assumes regional flow in a
horizontal direction with vertical disturbance resulting from recharge
and infiltration from the overlying unsaturated zone and landfill. The
lower boundary of the aquifer is assumed to be impermeable. Flow in the
saturated zone is assumed to be steady-state. The EPACMTP accounts for
different recharge rates beneath and outside the source area.
Groundwater mounding beneath the source is represented in the flow
system by increased head values at the top of the aquifer. This
approach is reasonable as long as the height of the mound is small
relative to the thickness of the saturated zone.
4. Transport in the Unsaturated Zone. Contaminant transport in the
unsaturated zone is assumed to occur by advection and dispersion. The
unsaturated zone is assumed to be initially contaminant-free, and
contaminants are assumed to migrate vertically downward from the
disposal facility. The EPACMTP can simulate both steady-state and
transient transport in the unsaturated zone with single-species or
multiple-species chain decay reactions and with linear or nonlinear
sorption.
5. Transport in the Saturated Zone. Contaminant transport in the
saturated zone is assumed to be a result of advection and dispersion.
The aquifer is assumed to be initially contaminant-free, and
contaminants are assumed to enter the aquifer only from the unsaturated
zone immediately beneath the waste disposal facility, which is modeled
as a rectangular, horizontal plane source. The EPACMTP can simulate
both steady-state and transient three-dimensional transport in the
aquifer. For steady-state transport, the contaminant mass flux entering
at the water table must be constant with time; for the transient case,
the flux at the water table may be constant or may vary as a function
of time. The EPACMTP can simulate the transport of a single species or
multiple species, chain decay reactions, and linear sorption.
6. Contaminant Phases. The EPACMTP assumes that the dissolved phase
is the only mobile phase and disregards interphase mass transfer
processes other than adsorption onto the solid phase. The model does
not account for volatilization in the unsaturated zone; this is a
conservative approach for volatile chemicals. The model also does not
account for the presence of a nonaqueous-phase liquid (such as oil) or
for transport in the gas phase. When a mobile oil phase is present,
significant contaminant migration may occur within it, and the EPACMTP
may underestimate the movement of hydrophobic chemicals (chemicals that
``prefer'' not to be dissolved in water, but to be dissolved in oil or
oil-like materials).
7. Chemical Reactions. The EPACMTP computes chemical reactions
involving adsorption and decay processes. The EPACMTP assumes that
sorption of organic compounds in the subsurface is represented by
linear adsorption isotherms in both the unsaturated and saturated
zones. It is assumed that adsorption of contaminants onto the soil or
aquifer solid phase occurs instantaneously and is entirely reversible.
The effect of geochemical interactions is especially important in fate
and transport analyses of metals. For simulation of metals, the EPACMTP
uses sorption isotherms generated by EPA's MINTEQA2 metals speciation
model, which takes into account the fact that many metals can exist in
more than one chemical form or species, and that geochemical conditions
can have large effects on the mobility of metals. The EPACML could not
account for metals speciation. MINTEQA2 is used to generate effective
sorption isotherms for individual metals. The sorption isotherms
correspond to a range of geochemical conditions that cause a metal to
be present in different chemical forms or species which sorb (or bind)
to subsurface material in different ways with different binding
strengths (EPACMTP Metals Background Document, Office of Solid Waste,
U. S. EPA, Washington, DC, September 1996). The transport modules for
both the unsaturated and saturated zones in EPACMTP have been enhanced
to incorporate the nonlinear MINTEQA2 sorption isotherms. This
enhancement provides the model with the capability to simulate the
impact of pH, leachate organic matter, natural organic matter, iron
hydroxide and the presence of other ions in the groundwater on the
mobility of metals in the unsaturated and saturated zones. The EPACMTP
also accounts for chemical and biological transformation processes. All
transformation reactions are represented by first-order decay
processes. An overall decay rate is specified for the model; therefore,
the model cannot explicitly consider the separate effects of multiple
degradation processes such as oxidation, hydrolysis, and
biodegradation. The user must determine the overall, effective decay
rate when multiple decay processes are to be represented. To maximize
its flexibility, the EPACMTP has the capability of determining the
overall decay rate from chemical-specific hydrolysis constants using
soil and aquifer temperature and pH values. The EPACMTP assumes that
reaction stoichiometry (the proportion of each chemical taking part in
a chemical reaction) is prescribed for scenarios involving chain decay
reactions. The speciation factors are specified as constants by the
user (see the EPACMTP Background Document and User's Guide, Office of
Solid Waste, U.S. EPA, Washington, DC, September 1996). In reality,
these coefficients may change as functions of aquifer conditions (for
example, temperature and pH), concentration levels of other chemical
components, or both.
8. Contaminant Release and Transport Scenario. Two source release
scenarios are considered in the EPACMTP: continuous (infinite) and
finite-source. Only the finite-source scenario is considered for
delisting. For finite-source scenarios, the release of contaminants
occurs over a finite period of time, after which the leachate
concentration becomes zero (that is, all the contaminants in the waste
disposed

[[Page 9786]]

of in the landfill have leached out). The landfill parameters used by
the EPACMTP to calculate contaminant release include values and/or
frequency distributions of the capacity and dimensions of the landfill,
the leachate concentration, infiltration and recharge rates, pulse
duration, the fraction of hazardous waste in the landfill, the density
of the waste, and the concentration of the chemical constituent in the
hazardous waste. Data on the areas, volumes, and locations of landfills
were obtained from the Nationwide Survey of Industrial Subtitle D
Landfills, Westat, 1987. Derivation of the parameters for landfills is
described in the EPACMTP Background Document and User's Guide, Office
of Solid Waste, U.S. EPA, Washington, DC, September 1996. For finite-
source scenarios, simulations are performed for transient conditions,
and the source is assumed to be a pulse of finite duration. In the case
of landfills, the pulse duration is based on the initial amount of
contaminant in the landfill, infiltration rate, landfill dimensions,
waste and leachate concentration, and waste density. For a finite-
source scenario, the model can calculate either the peak receptor well
concentration for non-carcinogens or an average concentration over a
specified period for carcinogens. The finite-source methodology in the
EPACMTP is discussed in detail in the EPACMTP Background Document for
the Finite Source Methodology for Chemicals with Transformation
Products and Implementation of the HWIR, Office of Solid Waste, U.S.
EPA, Washington, DC, September 1996.
9. EPACMTP Modeling Assumptions and Input Parameters. Specific
EPACMTP modeling assumptions (in addition to the simplifying
assumptions discussed in the eight preceding paragraphs) are summarized
in Table 1A, below. This table also provides information on important
input parameters as well as on their data sources or details. Overall,
EPACMTP input parameters can be organized in the following four groups:

1. Source-specific parameters
2. Chemical-specific parameters
3. Unsaturated zone-specific parameters
4. Saturated zone-specific parameters

For delisting, the EPACMTP is run in Monte Carlo mode (probabilistic
calculations), and the source-,
chemical-, unsaturated zone-, and saturated-zone specific parameters
are represented by probability distributions reflecting variations on a
national or a regional level. Specific capabilities and requirements
associated with running the EPACMTP in the Monte Carlo mode are
presented in Chapter 3 of EPA's Composite Model for Leachate Migration
with Transformation Products, EPACMTP: User's Guide, Office of Solid
Waste, U.S. EPA, Washington, DC, 1997. The Monte Carlo analysis
determines the effect of the possible range of the input parameter of
concern on the receptor well concentration. Output values produced for
each iteration are sorted and ranked from highest to lowest in order to
obtain a probabilistic distribution of receptor well concentrations.
The different groups of input parameters are summarized below. For
chemicals that were not modeled using the EPACMTP fate and transport
model, the most conservative DAF was assigned (i.e., DAF=18f).

Table 1A.--EPACMTP Modeling Assumptions and Input Parameters
------------------------------------------------------------------------

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

Modeling assumptions
------------------------------------------------------------------------
Modeling element Description or value
------------------------------------------------------------------------
Management Scenario.......... Landfill.
Modeling Scenario............ Finite-source Monte Carlo; depleting
source for organics, constant
concentration pulse source for metals.
Exposure Evaluation.......... Downgradient groundwater receptor well;
maximum well concentration of non-
carcinogens during modeling period,
maximum 30-year average well
concentration of carcinogens; 10,000-
year exposure period.
Regulatory Protection........ Level 90 percent.
------------------------------------------------------------------------
Source-specific parameters
------------------------------------------------------------------------
Parameter Description or value
------------------------------------------------------------------------
Landfill Area................ Derived.
Landfill Volume.............. User-specified.
Infiltration Rate from Site-based, derived from water balance
Landfill. using HELP model.
Leaching Duration from Derived, continues until all constituents
Landfill. have leached out; 20 years (operational
life of unit).
------------------------------------------------------------------------
Chemical-specific parameters
------------------------------------------------------------------------
Parameter Description and source
------------------------------------------------------------------------
Decay Rate:
Organic Constituents..... Hydrolysis rate constants compiled by
U.S. EPA ORD.
Metals................... No decay.
Sorption:
Organic Constituents..... Koc constants compiled by U.S. EPA ORD.
Metals................... MINTEQA2 sorption isotherm coefficients
(Kd) for Pb, Hg (II), Ni, Cr (III), Ba,
Cd, Ag, Zn, Cu (II), Be]; pH- dependent
isotherm coefficients for As (III), Cr
(VI), Se (VI), Th.
------------------------------------------------------------------------
Unsaturated zone-specific parameters
------------------------------------------------------------------------
Parameter Description and source
------------------------------------------------------------------------
Depth to Groundwater......... Site-based, from API and USGS
hydrogeologic database.

[[Page 9787]]

Soil Hydraulic Parameters: U.S. EPA ORD data based on national
Fraction Organic Carbon Bulk distribution of three soil types (sandy
Density. loam, silt loam, silty clay loam).
------------------------------------------------------------------------
Saturated zone-specific parameters
------------------------------------------------------------------------
Parameter Description and source
------------------------------------------------------------------------
Recharge Rate................ Site-based, derived from regional
precipitation and evaporation data and
soil type.
Aquifer Thickness............ Site-based, from API and USGS
hydrogeologic database.
Hydraulic Conductivity....... Site-based, from API and USGS
hydrogeologic database.
Hydraulic Gradient........... Site-based, from API and USGS
hydrogeologic database.
Porosity..................... Effective porosity derived from national
distribution of aquifer particle
diameter.
Bulk Density................. Derived from porosity.
Dispersivity................. Derived from distance to receptor well.
Groundwater Temperature...... Site-based, from USGS regional
temperature map.
Fraction Organic Carbon...... National distribution, from U.S. EPA
STORET database.
pH........................... National distribution, from U.S. EPA
STORET database.
------------------------------------------------------------------------
Receptor well parameters
------------------------------------------------------------------------
Well element Description and source
------------------------------------------------------------------------
Radial Distance from Landfill Nationwide distribution, from U.S. EPA
OSW database.
Angle Off-Center............. Unifrom within ± 90 deg. from
plume center line (no restriction within
plume).
Depth of Intake Point........ Uniform throughout saturated thickness of
aquifer.
------------------------------------------------------------------------
Notes:
Table is adapted from Tables 2-1, Chapter 2 of Region 6's RCRA Delisting
Technical Support Document, EPA906-D-98-001, Interim Final, August 1,
2000.
API = American Petroleum Institute.
HELP = Hydrologic Evaluation of Landfill Performance; The HELP model was
used to calculate landfill infiltration rates for a representative
subtitle D landfill with 2-foot earthen cover, and no liner or
leachate collection system, using climatic data from 97 climatic
stations located throughout the United States. These correspond to the
reasonable worst case assumptions as explained in the HWIR Risk
Assessment Background Document for the HWIR proposed notice 60 FR
66344 (December 21, 1995). Additional details on the methodologies
used by the EPACMTP to derive DAFs for waste constituents modeled for
the landfill scenario are presented in the Background Documents for
the proposed HWIR rule. See 60 FR 66344 (December 21, 1995). The
fraction of waste in the landfill is assigned a uniform distribution
with lower and upper limits of 0.036 and 1.0, respectively, based on
analysis of waste composition in Subtitle D landfills. The lower bound
assures that the landfill will always contain a minimum amount of the
waste of concern. The waste density is assigned a value based on
reported densities of hazardous waste, and varies between 0.7 and 2.1
g/cm.³
ORD = U.S. EPA Office of Research and Development.
STORET = Database Utility for STORage and RETrieval of Chemical,
Physical, and Biological Data for Water Quality.
USGS = U.S. Geological Survey.

4. Has the EPACMTP Methodology Been Formally Reviewed?
The Science Advisory Board (SAB), a public advisory group that
provides information and advice to the EPA, reviewed the EPACMTP model
as part of a continuing effort to provide improvements in the
development and external peer review of environmental regulatory
models. Overall, the SAB commended EPA for making significant
enhancements to the EPACMTP's predecessor, the EPACML and for
responding to previous SAB suggestions. The SAB also concluded that the
mathematical formulation incorporating daughter products into the model
appeared to be correct and that the site-based approach using
hydrogeologic regions is superior to the previous approach used in
EPACML. The model underwent public comment during the 1995 proposed
HWIR. See 60 FR 66344 (December 21, 1995).
5. Has EPA Modified the EPACMTP as Used in the Proposed Hazardous Waste
Identification Rule (HWIR)?
The EPACMTP, as developed for HWIR, determined the DAF using a
Monte Carlo approach that selected, at random, a waste volume from a
range of waste volumes identified in EPA's 1987 Subtitle D landfill
survey. In delisting determinations, the waste volume of the petitioner
is known. Therefore, application of EPACMTP to the delisting program
has been modified to evaluate the specific waste volume, just as the
original EPACML model was modified for delisting to derive DAFs related
to waste volume from DAFs related to landfill area. EPA modified the
DAFs determined under the HWIR proposal to account for a known waste
volume. To generate waste volume-specific DAFs, EPA developed ``scaling
factors'' to modify DAFs developed for HWIR (based on the entire range
of waste disposal units) to DAFs for delisting waste volumes. This was
accomplished by computing a 90th percentile DAF for a conservative
chemical (a chemical that persists in the environment) for 10 specific
waste volumes (ranging from 1,000 cubic yards to 300,000 cubic yards)
for each waste management scenario (landfill and surface impoundment).
EPA assumed that DAFs for a specific waste volume are linearly related
to DAFs developed by EPACMTP for the HWIR. DAF scaling factors were
computed for the ten increment waste volumes. Using these ten scaling
factor DAFs, regression equations were developed for each waste
management scenario to provide a continuum of DAF scaling factors as a
function of waste volume.
The regression equations are coded into the DRAS program which then
automatically adjusts the DAF for the waste volume of the petitioner.
The method used to verify the scaling factor approach is presented
in the document, Application of EPACMTP to Region 6 Delisting Program:
Development of Waste Volume-Specific Dilution Attenuation Factors, U.S.
EPA, August 1996. For the landfill waste management scenario, the DAF
scaling factors ranged from 9.5 for 10,000 cu.

[[Page 9788]]

yard to approximately 1.0 for waste volumes greater than 200,000 cu.
yards. Therefore, for petitioned waste volumes greater than 200,000 cu.
yards, the waste volume-specific DAF is the same as the DAF computed
for the proposed HWIR. The regression equation that can be used to
determine the DAF scaling factor (DSF) as a function of waste volume
(in cubic yards) for the landfill waste management unit is: DSF =
6152.7* (waste volume) ^-0.7135. The correlation coefficient
of this regression equation is 0.99, indicating a good fit of this line
to the data points.
6. What Modifications to the DRAS Have Been Made Since the Proposal in
65 FR 58015-58031, September 27, 2000?
Several revisions have been made to the DRAS program in order to
improve the modeling. Specifically, the groundwater inhalation pathway
was revised to reflect recent advances in modeling household inhalation
from home water use (e.g., showering). The basis for estimating the
concentration of constituents in the indoor air is based on the mass
transfer of constituent from water to shower air. The initial version
of DRAS used a fate and transport model described by McKone and Bogen
(1992) \6\ which predicted the highest waste concentration emitted from
the water into the air during a given water use period (e.g., 10-minute
shower). This method was revised to more accurately predict the average
concentration occurring during the exposure event.
---------------------------------------------------------------------------

\6\ McKone, T.E., and K.T. Bogen, 1992, ``Uncertainties in
Health-Risk Assessment: An Integrated Case Study Based on
Tetrachloroethylene in California Groundwater.'' Regulatory
Toxicology and Parmacology, 15:86-103.
---------------------------------------------------------------------------

The revised model used in this analysis is based on the equations
presented in McKone (1987) \7\. The shower model estimates the change
in the shower (or bathroom or household) air concentration based on the
mass of constituent lost by the water (fraction emitted or emission
rate) and the air exchange rate between the various model compartments
(shower, the rest of the bathroom, and the rest of the house). The
resulting differential equations were solved using finite difference
numerical integration. The average air concentration in the shower and
bathroom are obtained by averaging the concentrations obtained for each
time step over the duration of the exposure event (shower and bathroom
use). These concentrations and the durations of daily exposure are used
to estimate risk from inhalation exposures to residential use of
groundwater. Further, improvements were made to more accurately reflect
the transfer efficiency of the waste constituent from the groundwater
to the air compartment. The fraction emitted from the bathroom or
household water use is a function of the input transfer efficiency (or
maximum fraction emitted) and the driving force for mass transfer (the
differential between air saturation concentration at air/water
interface and bulk air concentration). For example, in the shower
compartment, the constituent emission rate is estimated from the change
in the shower water concentration as the water falls through the air.
---------------------------------------------------------------------------

\7\ McKone, T.E. 1987, ``Human Exposure to Volatile Organic
Compounds in Household Tap Water. The Indoor Inhalation Pathway.''
Environmental Science and Technology, 21(12): 1194-1201.
---------------------------------------------------------------------------

The shower emissions can be modeled based on falling droplets as a
means of estimating the surface-area-to-volume ratio for mass transfer
and the residence time of the water in the shower compartment, assuming
the constituent concentration in the gas phase is constant over the
time frame of the droplet fall. By assuming the drops fall at terminal
velocity, the surface-area-to-volume ratio and the residence time can
be determined based solely on droplet size. A droplet size of
approximately 1 mm (0.1 cm) was selected. The terminal velocity for the
selected droplet size is approximately 400 cm/s. The fraction of
constituent emitted from a water droplet at any given time can then be
calculated.
The equations used to predict surface volatilization from a
landfill have been modified to more accurately reflect true waste
concentration releases. The previous version of DRAS used Farmer's
equation \8\ to estimate the emission rate of volatiles from the
surface of the landfill. Farmer's equation assumes that the emission
originates as volatiles in liquids trapped in the pore spaces between
solid particles of waste. The volatiles evaporate from the liquid and
are emitted from the landfill following gaseous diffusion through the
solid waste particles and soil cover to the surface of the landfill.
Farmer's equation requires the mole fraction of a given volatile
constituent in the liquid in order to calculate the emission. The
previous version of DRAS used the TCLP value of a volatile constituent
in the waste to approximate the mole fraction of a given constituent in
the pore liquid. Since the TCLP test includes a 20-fold dilution, the
calculation might underestimate the available concentration of
volatiles in freshly deposited waste. The DRAS has been revised to use
Shen's modification of Farmer's equation, described in U.S. EPA Office
of Air Quality Planning and Standards' 1984 Evaluation and Selection of
Models for Estimating Air Emissions from Hazardous Waste Treatment,
Storage, and Disposal Facilities, EPA-450/3-84-020. Shen took the
simplified version of Farmer's equation for vapor flux from a soil
surface and converted it to an emission rate by multiplying it by the
exposed landfill area. Shen's modification uses the total waste
constituent concentration (weight fraction in the bulk waste) to
approximate the mole fraction of that constituent in the liquid phase.
---------------------------------------------------------------------------

\8\ Farmer, W.J., MS. Yange and J. Letey. ``Land Disposal of
Hexachlorobenzene Wastes Controlling Vapor Movement in Soils.'' In:
Land Disposal of Hazardous Wastes, Proceedings of the Fourth Annual
Research Symposium. Held at San Antonio, TX on March 6, 7 and 8.
EPA-600/9-78-016. U.S. EPA Office of Research and Development,
Municipal Environmental Research Laboratory, Cincinnati OH. August.
---------------------------------------------------------------------------

In estimating the amount of a given waste constituent that is
released to surface water and eventually becomes freely dissolved in
the water column, previous delisting petitions and the earlier version
of the DRAS used the maximum observed TCLP concentration in waste as
the total amount of the waste constituent available for erosion.
Further, the former method assumed that all of the constituent mass
that reached the stream, based on TCLP, became dissolved in the aqueous
phase. Assuming complete conversion to a dissolved state is overly
conservative and not in agreement with recent EPA methodology. In the
revised DRAS, the total waste constituent concentration is used to
estimate the constituent mass that reaches the stream. The portion of
the waste constituent that becomes freely dissolved is determined by an
estimate of partitioning between suspended solids and the aqueous
phase. This methodology is described in U.S. EPA's 1998 Human Health
Risk Assessment Protocol for Hazardous Waste Combustion Facilities,
Volume One, Peer Review Draft, EPA530-D-98-001A (HHRAP).
Recent developments in mercury partitioning described in the
Mercury Report to Congress led to another revision to the surface water
pathway. The DRAS was modified to account for bioaccumulation of methyl
mercury as a result of the release of mercury into the surface water
column. The primary human health hazard posed by the release of mercury
into surface water is through bioaccumulation of methyl mercury in fish
followed by human consumption of the contaminated fish.

[[Page 9789]]

Biological processes in surface water cause the conversion, or
methylation, of elemental mercury to methyl mercury. In accordance with
the HHRAP, 15% of mercury in the water column is assumed to be
converted to methyl mercury. This fraction is then used, along with the
current bioaccumulation factor, to determine the predicted
concentration of methyl mercury in fish tissue.
7. What Methods Is EPA Proposing To Use To Determine Delisting Levels
for This Petitioned Waste?
BMW submitted to the EPA analytical data from its Greer, South
Carolina plant and from the BMW plant in Dingolfing, Germany. Four
composite samples of wastewater treatment sludge, from approximately 60
batches of wastewater, were collected from each plant, over a three-
week period. A summary of analytical data is presented in Table 1B of
section II below, with analytical details in the Table footnotes.
After reviewing the analytical data and information on processes
and raw materials that BMW submitted in the delisting petition, EPA
developed a list of constituents of concern and calculated delisting
levels for them using MCLs and EPACML DAFs and calculated delisting
levels and risks using DRAS and EPACMTP DAFs as described above. EPA
requests public comment on these proposed methods of calculating
delisting levels and risks for BMW's petitioned waste.
EPA also requests comment on three additional methods of evaluating
BMW's delisting petition and determining delisting levels: (1) Use of
the Multiple Extraction Procedure (MEP), SW-846 Method 1320,\9\ to
evaluate the long-term resistance of the waste to leaching in a
landfill; (2) setting limits on total concentrations of constituents in
the waste that are more conservative than results of calculations of
constituent release from waste in a landfill to surface water and air,
and release during waste transport; and (3) setting delisting levels at
the Land Disposal Restrictions (LDR) Universal Treatment Standards
(UTS) levels in 40 CFR 268.48. The UTS levels for BMW's constituents of
concern are the following:
---------------------------------------------------------------------------

\9\ ``SW-846'' means EPA Publication SW-846, ``Test Methods for
Evaluating Solid Waste, Physical/Chemical Methods.'' Methods in this
publication are referred to in today's proposed rule as ``SW-846,''
followed by the appropriate method number.
---------------------------------------------------------------------------

Barium: 21 mg/l TCLP; Cadmium: 0.11 mg/l TCLP; Chromium: 0.60 mg/l
TCLP; Cyanide Total: 590 mg/kg; Cyanide Amenable 30 mg/kg; Lead: 0.75
mg/l TCLP; Nickel: 11 mg/l TCLP.
The EPA provides notice and an opportunity for comment before
granting or denying a final exclusion. Thus, a final decision will not
be made until all timely public comments (including those at public
hearings, if any) on today's proposal are addressed.

II. Disposition of Delisting Petition

A. Summary of Delisting Petition Submitted by BMW Manufacturing
Corporation, Greer, South Carolina (BMW)

BMW manufactures BMW automobiles, and is seeking a delisting for
the sludge that will be generated by treating wastewater from its
manufacturing operations, when aluminum will be used to replace some of
the steel in the automobile bodies. Wastewater treatment sludge does
not meet a hazardous waste listing definition when steel-only
automobile bodies are manufactured. However, the wastewater treatment
sludge generated at automobile manufacturing plants where aluminum is
used as a component of automobile bodies, meets the listing definition
of F019 in Sec. 261.31.\10\
---------------------------------------------------------------------------

\10\ ``Wastewater treatment sludges from the chemical conversion
coating of aluminum except from zirconium phosphating in aluminum
can washing when such phosphating is an exclusive conversion coating
process.''
---------------------------------------------------------------------------

BMW petitioned EPA, Region 4, on June 2, 2000, to exclude this F019
waste, on a generator-specific basis, from the lists of hazardous
wastes in 40 CFR part 261, subpart D.
The hazardous constituents of concern for which F019 was listed are
hexavalent chromium and cyanide (complexed). BMW petitioned the EPA to
exclude its F019 waste because BMW does not use either of these
constituents in the manufacturing process. Therefore, BMW does not
believe that the waste meets the criteria of the listing.
BMW claims that its F019 waste will not be hazardous because the
constituents of concern for which F019 is listed will be present only
at low concentrations and will not leach out of the waste at
significant concentrations. BMW also believes that this waste will not
be hazardous for any other reason (i.e., there will be no additional
constituents or factors that could cause the waste to be hazardous).
Review of this petition included consideration of the original listing
criteria, as well as the additional factors required by the Hazardous
and Solid Waste Amendments (HSWA) of 1984. See section 222 of HSWA, 42
U.S.C. 6921(f), and 40 CFR 260.22(d)(2)-(4). Today's proposal to grant
this petition for delisting is the result of the EPA's evaluation of
BMW's petition.
In support of its petition, BMW submitted: (1) Descriptions of its
manufacturing and wastewater treatment processes, the generation point
of the petitioned waste, and the manufacturing steps that will
contribute to its generation; (2) Material Safety Data Sheets (MSDSs)
for materials used to manufacture automobiles and to treat wastewater;
(3) the minimum and maximum annual amounts of wastewater treatment
sludge generated from 1996 through 1999, and an estimate of the maximum
annual amount expected to be generated in the future; (4) results of
analysis for metals, cyanide, sulfide, fluoride, and volatile organic
compounds in the currently generated waste at the BMW plants in Greer,
South Carolina, and Dingolfing, Germany; (5) results of the analysis of
leachate obtained by means of the Toxicity Characteristic Leaching
Procedure ((TCLP), SW-846 Method 1311), from these wastes; (6) results
of the determinations for the hazardous characteristics of
ignitability, corrosivity, and reactivity, in these wastes; (7) results
of determinations of dry weight percent, bulk density, and free liquids
in these wastes; and (8) results of the MEP analysis of the currently
generated waste at the plant in Greer, South Carolina.
The BMW automobile assembly plant in Greer, South Carolina,
manufactures automobiles for domestic consumption and for shipment to
foreign markets. BMW's Standard Industrial Classification (SIC) code is
3711. The assembly plant operations include body welding, conversion
coating, painting, final assembly, and shipment. The manufacturing
process that will cause F019 to be generated is conversion coating,
when applied to automobile bodies that contain aluminum. Conversion
coating takes place in the plant's paint shop and treats the metal
surface of each automobile body before painting to provide resistance
to corrosion and to prepare the metal surface for optimum paint
adhesion. Wastewater from all plant operations is treated at BMW's
wastewater pretreatment plant which is located in an area of the paint
shop. The wastewater is treated to meet the requirements of BMW's
wastewater pretreatment permit before discharging the water to the
publicly owned treatment works (POTW). Treatment results in the
formation of insoluble

[[Page 9790]]

metal hydroxides and phosphates. Wastewater treatment sludge is
generated when these metal hydroxides and phosphates are dewatered in a
filter press. The sludge that exits from the filter press will be
classified as F019 when the automobile bodies contain aluminum, and the
exit from the filter press will be the point of generation of F019.
BMW began generating wastewater treatment sludge from its Greer,
South Carolina, assembly plant in 1994. From 1996 through 1999, BMW
generated from 264 tons to 386 tons of wastewater treatment sludge per
year. BMW estimated that production could increase to 1,600 vehicles
per day in the next decade, and the generation rate of wastewater
treatment sludge could reach 2,400 tons per year. BMW produces
relatively large quantities of sludge because the company voluntarily
removes phosphate from its wastewater in order to protect water quality
in a recreational lake located downstream of the POTW discharge.
Table 1B below summarizes the hazardous constituents and their
concentrations in BMW's wastewater treatment sludge generated from the
manufacture of steel-only automobile bodies at the Greer, South
Carolina, plant, and in the wastewater treatment sludge generated from
the manufacture of automobile bodies containing steel and aluminum, at
the BMW plant in Dingolfing, Germany.

Table 1B.--BMW Manufacturing Corporation, Greer, South Carolina, and Dingolfing, Germany: Wastewater Treatment Sludge Profile
--------------------------------------------------------------------------------------------------------------------------------------------------------
C.V.\3\
Parameters \1\ 1 2 3 4 \2\ Max. Mean S.D. (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Metals
Barium:
SC Plant.............................. 402 387 (383) 377 368 402 383.4 12.6 3.3
German Plant.......................... 144 (106) 116 120 121 144 121.4 14.0 11.5
Barium--TCLP:
SC Plant.............................. ND ND (ND) ND ND NA NA NA NA
German Plant.......................... ND (ND) ND ND ND NA NA NA NA
Cadmium:
SC Plant.............................. 21.3 21.5 (21.1) 20.6 19.9 21.5 20.88 0.642 3.1
German Plant.......................... 3.77 (3.48) 3.26 ND ND 3.77 3.42 0.22 6.5
Cadmium--TCLP:
SC Plant.............................. ND ND (ND) ND ND NA NA NA NA
German Plant.......................... ND (ND) ND ND ND NA NA NA NA
Chromium:
SC Plant.............................. 202 222 (207) 213 201 222 209 8.69 4.2
German Plant.......................... 94.3 (84.2) 90.5 94.6 100 100 92.72 5.84 6.3
Chromium--TCLP:
SC Plant.............................. ND ND (ND) ND ND NA NA NA NA
German Plant.......................... ND (ND) ND ND ND NA NA NA NA
Lead:
SC Plant.............................. 337 356 (348) 356 340 356 347 8.82 2.5
German Plant.......................... 1,920 (1,430) 1,540 1,490 1,240 1,920 1,524 248.9 16.3
Lead--TCLP:
SC Plant.............................. ND ND (ND) ND ND NA NA NA NA
German Plant.......................... ND (ND) ND ND ND NA NA NA NA
Nickel:
SC Plant.............................. 1,400 1,660 (1,560) 1,710 1,500 1,710 1,566 124.0 7.9
German Plant.......................... 5,680 (5,350) 5,620 5,860 6,450 6,450 5,792 410.8 7.1
Nickel--TCLP:
SC Plant.............................. 6.00 5.69 (5.80) 6.25 6.09 6.25 5.966 0.224 3.8
German Plant.......................... 0.73 (ND) 0.62 ND ND 0.73 0.57 0.10 18.1
Zinc:
SC Plant.............................. 15,000 15,100 (14,300) 14,000 13,300 15,100 14,300 743.6 5.2
German Plant.......................... 14,600 (12,500) 13,800 13,800 13,900 14,600 13,720 759.6 5.5
Zinc--TCLP:
SC Plant.............................. 6.08 6.21 (6.07) 5.42 5.87 6.21 5.93 0.310 5.2
German Plant.......................... ND (ND) ND ND ND NA NA NA NA

Volatile Organic Compounds

Acetone:
SC Plant.............................. 5.950j 3.263j (1.432j) 3.372j 1.793j 5.950j 3.162 1.781 56.3
German Plant.......................... ND (ND) ND ND ND ND NA NA NA
Acetone--TCLP:
SC Plant.............................. 8.28j 5.13j (0.0507j) 2.68j 1.34j 8.28j 3.50 3.27 93.4
German Plant.......................... 0.6067j (0.3581j) 1.563j 0.3090j 1.490j 1.563j 0.8654 0.6145 71.0
2-Butanone:
SC Plant.............................. 1.055 1.122 (ND) 0.6889 0.2672 1.122 0.6623 0.4348 65.7
German Plant.......................... ND (ND) ND ND ND ND NA NA NA
2-Butanone--TCLP:
SC Plant.............................. ND ND (ND) ND ND ND NA NA NA
German Plant.......................... ND (ND) ND ND ND ND NA NA NA
Ethylbenzene:
SC Plant.............................. 0.6917j 0.5789j 0.2875j 0.1960j 0.7879j 0.7879j 0.5084 0.2564 50.4
German Plant.......................... ND (ND) ND ND ND ND NA NA NA

[[Page 9791]]

Ethylbenzene--TCLP:
SC Plant.............................. ND ND (ND) ND ND ND NA NA NA
German Plant.......................... ND (ND) ND ND ND ND NA NA NA
4-Methyl-2-pentanone:
SC Plant.............................. 0.4100 0.3089 (ND) 0.2843 0.1948 0.410 0.2753 0.0938 34.1
German Plant.......................... ND (ND) ND ND ND ND NA NA NA
4-methyl-2-pentanone--TCLP:
SC Plant.............................. ND ND (ND) ND ND ND NA NA NA
German Plant.......................... ND (ND) 0.0733 ND ND 0.0733 NA NA NA
Toluene:
SC Plant.............................. ND 0.0211 (ND) ND ND 0.0211 NA NA NA
German Plant.......................... ND (ND) ND ND ND ND NA NA NA
Toluene--TCLP:
SC Plant.............................. ND ND (ND) ND ND ND NA NA NA
German Plant.......................... ND (ND) ND ND ND ND NA NA NA
Xylenes, total:
SC Plant.............................. 2.4828j 2.144j (1.089j) 0.6871j 2.445j 2.4828j 1.7696 0.8276 46.8
German Plant.......................... 1.133 (1.000) 0.5667 1.233 1.050 1.233 0.997 0.256 25.7
Xylenes, total--TCLP:
SC Plant.............................. ND ND (0.0038) ND ND 0.0038 NA NA NA
German Plant.......................... 0.0273 (0.0255) 0.0343 0.0297 0.0407 0.0407 0.0315 0.0061 19.4

Hazardous Waste Characteristics

Corrosivity:
SC Plant.............................. No No (No) No No NA NA NA NA
German Plant.......................... No (No) No No No NA NA NA NA
Ignitability:
SC Plant.............................. No No (No) No No NA NA NA NA
German Plant.......................... No (No) No No No NA NA NA NA
Reactive Sulfide:
SC Plant.............................. 153j 194j (32j) 52j 78j 194j 101.8 69.0 67.8
German Plant.......................... ND (ND) ND ND ND ND NA NA NA
Reactive Cyanide:
SC Plant.............................. ND ND (ND) ND ND ND NA NA NA
German Plant.......................... ND (ND) ND ND ND ND NA NA NA

Inorganic Non-metals

Total Cyanide:
SC Plant.............................. ND 2.05j (3.35j) ND ND (3.35j) 2.28 0.599 26.3
German Plant.......................... ND (ND) ND ND ND ND NA NA NA
Amenable Cyanide:
SC Plant.............................. ND ND (ND) ND ND ND NA NA NA
German Plant.......................... ND (ND) ND ND ND ND NA NA NA
Fluoride:
SC Plant.............................. 8.6 9.7 (9.4) 11.7 13.7 13.7 10.62 2.07 19.5
German Plant.......................... 8.0j (9.2j) 8.4j 15.6j 15.5j 15.6j 11.3 3.87 34.2

Properties

Dry Weight Percent:
SC Plant.............................. 30 28 (28) 28 29 30 28.6 0.894 3.1
German Plant.......................... 30 (31) 30 30 30 31 30.2 0.447 1.5
Paint Filter Test \4\:
SC Plant.............................. Pass Pass (Pass) Pass Pass NA NA NA NA
German Plant.......................... Pass (Pass) Pass Pass Pass NA NA NA NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Parameters are the chemicals or properties analyzed. Results for the two plants are in separate rows below the name of the chemical or property.
\2\ The first set of results for each chemical shows the concentrations determined by total analysis of the samples in milligrams of chemical per
kilogram of waste (mg/kg). The second set of results for each chemical shows the concentrations determined by analysis of the TCLP extracts of the
samples in milligrams of chemical per liter of TCLP extract of the waste (mg/L). The TCLP results are just below the row where the name of the
chemical is followed by ``--TCLP.'' ND = Not detected. NA = Not applicable. j = Parameter concentration estimated based on validation criteria. The
metals, antimony, hexavalent chromium, silver, and vanadium, and the volatile organic compounds ethyl acetate, isobutanol, -butanol, and methanol were
not detected by total analysis of samples from both plants and are not included in the table in order to save space. Numbers 1 through 4 in the table
heading identify composite samples. Results in parentheses are for duplicate samples. As described in the petition, each composite sample is a mixture
of six grab samples. Grab samples were used for total analysis of volatile organic chemicals.

[[Page 9792]]

\3\ The last four columns contain a statistical analysis of the analytical results. Max. = maximum concentration found; Mean. = mean or average
concentration found = sum of concentrations divided by the number of samples; S.D.= standard deviation = the square root of [(sum of squares of the
differences between each measured concentration and the mean) divided by (the number of samples minus 1)]; C.V. = coefficient of variation, expressed
as a percent = 100 times the standard deviation divided by the mean concentration. Statistical analyses were performed only if the parameter was
detected in more han one sample. Detection limits reported by the laboratory were used in the statistical calculations when chemicals were not
detected (ND). This is a conservative assumption, which is likely to result in overestimation of the mean concentration.
\4\ ``Pass'' for the Paint Filter Test means that the sludge samples contained no free liquids.

EPA concluded after reviewing BMW's waste management and waste
history information that no other hazardous constituents, other than
those tested for, are likely to be present in BMW's petitioned waste.
In addition, on the basis of test results and other information
provided by BMW, pursuant to section 260.22, EPA concluded that the
petitioned waste will not exhibit any of the characteristics of
ignitability, corrosivity, or reactivity. See Secs. 261.21, 261.22, and
261.23, respectively.
During its evaluation of BMW's petition, EPA also considered the
potential impact of the petitioned waste on media other than
groundwater. With regard to airborne dispersal of waste, EPA evaluated
the potential hazards resulting from airborne exposure to waste
contaminants from the petitioned waste using an air dispersion model
for releases from a landfill. The results of this evaluation indicated
that there is no substantial present or potential hazard to human
health from airborne exposure to constituents from BMW's petitioned
waste. (A description of EPA's assessment of the potential impact of
airborne dispersal of BMW's petitioned waste is presented in the RCRA
public docket for today's proposed rule.)
EPA evaluated the potential impact of the petitioned waste on
surface water resulting from storm water runoff from a landfill
containing the petitioned waste, and found that the waste would not
present a threat to human health or the environment. (See the docket
for today's proposed rule for a description of this analysis). In
addition, EPA believes that containment structures at municipal solid
waste landfills can effectively control runoff, as Subtitle D
regulations (see 56 FR 50978, October 9, 1991) prohibit pollutant
discharges into surface waters. While some contamination of surface
water is possible through runoff from a waste disposal area, EPA
believes that the dissolved concentrations of hazardous constituents in
the runoff are likely to be lower than the extraction procedure test
results reported in today's proposed rule, because of the aggressive
acidic medium used for extraction in the TCLP. EPA also believes that,
in general, leachate derived from the waste will not directly enter a
surface water body without first traveling through the saturated
subsurface where dilution of hazardous constituents may occur.
Transported contaminants would be further diluted in the receiving
water body. Subtitle D controls would minimize significant releases to
surface water from erosion of undissolved particulates in runoff.

B. What Delisting Levels Did EPA Obtain With the EPACML Model and with
DRAS?

In order to account for possible variability in the generation
rate, EPA calculated delisting levels using a maximum generation rate
of 2,400 tons per year. EPA converted the 2,400 tons to a waste volume
of 2,850 cubic yards, by using BMW's conservative estimate that the
density of the sludge is approximately equal to the density of water.
While the sludge is certainly more dense than water, using the lower
density results in a higher value for the waste volume, and a lower,
more conservative, Dilution Attenuation Factor (DAF). Table 2 below is
a table of waste volumes in cubic yards and the corresponding DAFs from
the EPACML model. EPA obtained a DAF of 70 from Table 2, for BMW's
petitioned waste.

Table 2.--Dilution/Attenuation Factors (DAFs) for Landfills Calculated
by the EPACML Model, Modified for Delisting
------------------------------------------------------------------------
DAF (95th
Waste volume in cubic yards per year \1\ percentile)
----------------------------------------------------------------\2\-----
1,000................................................... \3\ 100
1,250................................................... 96
1,500................................................... 90
1,750................................................... 84
2,000................................................... 79
2,500................................................... 74
3,000................................................... 68
4,000................................................... 57
5,000................................................... 54
6,000................................................... 48
7,000................................................... 45
8,000................................................... 43
9,000................................................... 40
10,000.................................................. 36
12,500.................................................. 33
15,000.................................................. 29
20,000.................................................. 27
25,000.................................................. 24
30,000.................................................. 23
40,000.................................................. 20
50,000.................................................. 19
60,000.................................................. 17
80,000.................................................. 17
90,000.................................................. 16
100,000................................................. 15
150,000................................................. 14
200,000................................................. 13
250,000................................................. 12
300,000................................................. 12
------------------------------------------------------------------------
\1\ The waste volume includes a scaling factor of 20 (56 FR 32993, July
18, 1991; and 56 FR 67197, Dec. 30, 1991), where the annual volume of
waste in the table is assumed to be sent to a landfill every year for
20 years.
\2\ The DAFs calculated by the EPACML are a probability distribution
based on a range of values for each model input parameter; the input
parameters include such variables as landfill size, climatic data, and
hydrogeologic data. The 95th percentile DAF represents a value in
which one can have 95% confidence that a contaminant's concentration
will be reduced by a factor equal to the DAF, as the contaminant moves
from the bottom of the landfill through the subsurface environment to
a receptor well. For example, if the 95th percentile DAF is 10, and
the leachate concentration of cadmium at the bottom of the landfill is
0.05 mg/l, one can be 95% confident that the receptor well
concentration of cadmium will not exceed 0.005 mg/l. See 55 FR 11826,
March 29, 1990; 56 FR 32993, July 18, 1991; and 56 FR 67197, December
30, 1991.
\3\ DAF cutoff is 100, corresponding to the Toxicity Characteristic Rule
(55 FR 11826, March 29, 1990).

Table 3A below is a table of EPACML delisting levels for each
constituent of concern in BMW's petitioned waste. The constituents of
concern are barium, cadmium, chromium, cyanide, lead, and nickel, and
the EPACML DAF is 70 for the maximum estimated volume.

Table 3A.--Delisting Levels Calculated From EPACML Model for BMW
Petitioned Waste
------------------------------------------------------------------------
Delisting
Constituent MCL \1\(mg/ level (mg/
l) l TCLP)
------------------------------------------------------------------------
Barium.......................................... 2 ² 100
Cadmium......................................... 0.005 0.35
Chromium........................................ 0.10 ² 5
Cyanide......................................... 0.20 ³ 14
Lead............................................ ⁴ 0.015 1.05

[[Page 9793]]

Nickel.......................................... ⁵ 0.73 51
------------------------------------------------------------------------
¹ See the ``Docket Report on Health-based Levels and Solubilities Used
in the Evaluation of Delisting Petitions, Submitted Under 40 CFR
260.20 and 260.22,'' December 1994, located in the RCRA public docket,
for the Agency's methods of calculating health-based levels for
evaluating delisting petitions from MCLs, and when MCLs are not
available.
² The Toxicity Characteristic (TC) regulatory level in 40 CFR 261.24 for
chromium is 5 mg/l and for barium is 100 mg/l. Therefore, for
chromium, although a DAF of 70 times 0.10 equals 7, the delisting
level cannot be greater than 5 mg/l because a delisted waste must not
exhibit a hazardous characteristic. For the same reason, the delisting
level for barium cannot be 70 times 2, equal to 140, but must not be
greater than 100, the TC regulatory level for barium.
³ The TCLP is to be followed for cyanide, except that deionized water
must be used as the leaching medium, instead of the acetic acid or
acetate buffer specified in the TCLP. SW-846 Method 9010 or 9012 must
be used to measure cyanide concentration in the deionized water
leachate.
⁴ This value is an action level for a Publicly Owned Treatment Works,
rather than a MCL.
⁵ This value is a value that is protective of tap water, obtained from
EPA Region 9's Preliminary Remediation Goals Tables. Internet address
is: http://www.epa.gov/region09/waste/sfund/prg/s1_05.htm

Delisting levels and risk levels calculated by DRAS, using the
EPACMTP model, are presented in Table 3B below. DRAS found that the
major pathway for human exposure to this waste is groundwater
ingestion, and calculated delisting and risk levels based on that
pathway. The input values required by DRAS were the chemical
constituents in BMW's petitioned waste; their maximum reported
concentrations in the TCLP extract of the waste and in the unextracted
waste (Values for the South Carolina plant in Table 1B, Preamble
Section II.A.); the maximum annual volume to be disposed (2,850 cubic
yards) in a landfill; the desired risk level, which was chosen to be no
worse than 10^-6 for carcinogens; and a hazard quotient of no
greater than 1 for non-carcinogens. The only carcinogenic constituent
in the waste is cadmium, and cadmium also has non-carcinogenic toxic
effects. Allowable total concentrations in the waste, as calculated by
DRAS for the waste, itself, not the TCLP leachate, were all at least
1,000 times greater than the actual maximum total concentrations found
in the waste, and are not included in Table 3B, since many amount to
metal or cyanide concentrations of several per cent. However, in
addition to limits on the concentrations of constituents in the TCLP
leachate of the petitioned waste, EPA does propose to set the following
limits on total concentrations, in units of milligrams of constituent
per kilogram of unextracted waste (mg/kg): Barium: 2,000; Cadmium: 500;
Chromium: 1,000; Cyanide (Total, not Amenable): 200; Lead: 2,000; and
Nickel: 20,000. EPA asks for public comment on these limits which were
chosen to be both protective of human health and the environment and to
be realistic, attainable values for wastewater treatment sludges that
contain metals and cyanide. The maximum reported total concentrations
for BMW's petitioned waste were all below these limits. The limit for
cyanide was chosen so that the waste could not exhibit the reactivity
characteristic for cyanide by exceeding the interim guidance for
reactive cyanide of 250 mg/kg of releasable hydrogen cyanide (SW-846,
Chapter Seven, Section 7.3.3.)

Table 3B.--Delisting and Risk Levels Calculated by DRAS With EPACMTP Model for BMW Petitioned Waste
----------------------------------------------------------------------------------------------------------------
DRAS-calculated
DRAS-calculated hazard quotient
Delisting level (mg/ risk for maximum for maximum
Constituent l of TCLP) DAF concentration concentration of
carcinogen in non-carcinogen in
waste waste
----------------------------------------------------------------------------------------------------------------
Barium......................... ¹ 182 69.2 .................. 4.87 x 10^-2
Cadmium........................ ¹ 1.4 74.6 1.62 x 10^-13 3.57 x 10^-2
Chromium....................... ¹ 5.39 x 10^-5 9,580 .................. 5.8 x 10^-7
Cyanide........................ 33.6 44.8 .................. 1.49 x 10^-3
Lead........................... 187 1.24 x 10^-4 .................. Not calculable; no
reference dose
for lead
Nickel......................... 70.3 93.5 .................. 8.9 x 10^-2
Total Hazard Quotient for All ................... .................. .................. 0.187
Waste Constituents.
Total Carcinogenic Risk for the ................... .................. 1.62 x 10^-13 ..................
Waste (due to Cadmium).
----------------------------------------------------------------------------------------------------------------
¹ These levels are all greater than the Toxicity Characteristic (TC) regulatory level in 40 CFR 261.24. A waste
cannot be delisted if it exhibits a hazardous characteristic; therefore, the delisting level for each of these
constituents could not be greater than the TC level of 100 for Barium; 1.0 for Cadmium; 5.0 for Chromium; and
5.0 for Lead.

EPA proposes to use the delisting levels in the TCLP leachate
calculated by the older method using the EPACML DAF for BMW's
petitioned waste, because the EPACML levels are more conservative for
this waste. EPA requests public comment on the proposal to use the
delisting levels obtained with the EPACML DAF instead of those
calculated by the DRAS, using the EPACMTP, in combination with the
limits on total concentrations proposed in the paragraph preceding
Table 3B.

C. How Did EPA Use the Multiple Extraction Procedure (MEP) to Evaluate
This Delisting Petition?

EPA developed the MEP test (SW-846 Method 1320) to help predict the
long-term resistance to leaching of stabilized wastes, which are wastes
that have been treated to reduce the leachability of hazardous
constituents. The MEP consists of a TCLP extraction of a sample
followed by nine sequential extractions of the same sample, using a
synthetic acid rain extraction fluid (prepared by adding a 60/40 weight
mixture of sulfuric acid and nitric acid to distilled deionized water
until the pH is 3.0 ± 0.2). The sample which is subjected to
the nine sequential extractions consists of the solid phase remaining
after, and separated from, the initial TCLP extract. EPA designed the
MEP to simulate multiple washings of

[[Page 9794]]

percolating rainfall in the field, and estimates that these extractions
simulate approximately 1,000 years of rainfall. (See 47 FR 52687, Nov.
22, 1982.) MEP results are presented in Table 4 below. In response to a
request by EPA for additional information, BMW reported the following
practical quantitation limits in the MEP test: 0.001 mg/l for cadmium,
0.003 mg/l for lead, 0.01 mg/l for nickel, and 0.02 for zinc. Table 4
presents the results of analysis of MEP extracts.
The MEP data in Table 4 indicate that the petitioned waste would be
expected to leach metals at low and decreasing concentrations for a
period of at least 100 years, and only about 10 per cent of the amount
of metal in the waste would leach during this time period. \11\ The
average life of a landfill is approximately 20 years. (See 56 FR 32993,
July 18, 1991; and 56 FR 67197, Dec. 30, 1991.)
---------------------------------------------------------------------------

\11\ This estimate is based on the following calculation for
nickel: % nickel leached out over more than 100 years = 100 x
(total number of milligrams of nickel in all the sample MEP
extracts) ÷ the number of milligrams of nickel in the 100-
gram sample that was extracted by the MEP: 100 x 2 x ( 5.22
+0.299 + 0.234 + 0.654 + 0.267 + 0.084 + 0.059+ 0.018+ .028+ .01)
÷ 140 = 100 x 13.746 ÷140 = 9.8%.
---------------------------------------------------------------------------

The MEP pH data in Table 4 indicate that the pH of the petitioned
waste would be expected to lose its alkalinity over a period of years.
However, the amount of metal in the leachate remains similar to or
lower than the initial TCLP results, and decreases over time.

Table 4.--Multiple Extraction Procedure (SW-846 Method 1320) Results for BMW'S Petitioned Waste ¹
----------------------------------------------------------------------------------------------------------------
pH ² (before/
Extract No. Cadmium (Cd) Lead (Pb) Nickel (Ni) Zinc (Zn) after)
----------------------------------------------------------------------------------------------------------------
1 (TCLP)........................ 0.001 0.157 5.22 4.02 8.0/5.7
2 (first extraction of the MEP). ¹ 0.001 U 0.003 U 0.299 0.165 5.6/6.5
3............................... 0.001 U 0.003 U 0.234 0.088 5.4/6.6
4............................... 0.001 U 0.003 U 0.654 3.25 3.0/6.6
5............................... 0.001 U 0.003 U 0.267 5.61 3.0/3.9
6............................... 0.001 U 0.007 0.084 1.47 3.5/3.9
7............................... 0.001 0.003 U 0.059 0.603 3.2/3.3
8............................... 0.001 U 0.003 U 0.018 0.222 3.1/3.2
9............................... 0.001 U 0.003 0.028 0.139 2.9/3.1
10.............................. 0.001 U 0.003 U 0.010 U 0.073 3.0/3.3
----------------------------------------------------------------------------------------------------------------
¹ U = Not detected to level shown.
² pH is a measure of the negative logarithm of the hydrogen ion activity in an aqueous solution, and is a
measure of how acidic or basic (alkaline) a solution is. At 25 deg.C, solutions with pH values less than 7 are
acidic; greater than 7 are basic (alkaline); and a pH value of 7 indicates a neutral solution. In general,
metals and their compounds are less soluble in basic (alkaline) solutions. ``Start'' means pH at start of the
extraction and ``Finish'' means pH at the end of the extraction.

D. Conclusion

After reviewing BMW's processes, the EPA concludes that (1) no
hazardous constituents of concern are likely to be present in BMW's
waste at levels that would harm human health and the environment; and
(2) the petitioned waste does not exhibit any of the characteristics of
ignitability, corrosivity, or reactivity. See 40 CFR 261.21, 261.22,
and 261.23, respectively.
EPA believes that BMW's petitioned waste will not harm human health
and the environment when disposed in a nonhazardous waste landfill if
the delisting levels for land disposal as proposed in Preamble section
II.B. are met.
EPA proposes to exclude BMW's petitioned waste from being listed as
F019, based on descriptions of waste management and waste history,
evaluation of the results of waste sample analysis, and on the
requirement that BMW's petitioned waste must meet proposed delisting
levels before disposal. Thus, EPA's proposed decision is based on
verification testing conditions. If the proposed rule becomes
effective, the exclusion will be valid only if the petitioner
demonstrates that the petitioned waste meets the verification testing
conditions and delisting levels in the amended Table 1 of appendix IX
of 40 CFR part 261. If the proposed rule becomes final and EPA approves
that demonstration, the petitioned waste would not be subject to
regulation under 40 CFR parts 262 through 268 and the permitting
standards of 40 CFR part 270. Although management of the waste covered
by this petition would, upon final promulgation, be relieved from
Subtitle C jurisdiction, the waste would remain a solid waste under
RCRA. As such, the waste must be handled in accordance with all
applicable Federal, State, and local solid waste management
regulations. Pursuant to RCRA section 3007, EPA may also sample and
analyze the waste to determine if delisting conditions are met.

III. Limited Effect of Federal Exclusion

Will This Rule Apply in All States?

This proposed rule, if promulgated, would be issued under the
Federal (RCRA) delisting program. States, however, are allowed to
impose their own, non-RCRA regulatory requirements that are more
stringent than EPA's, pursuant to section 3009 of RCRA. These more
stringent requirements may include a provision which prohibits a
Federally issued exclusion from taking effect in the States. Because a
petitioner's waste may be regulated under a dual system (i.e., both
Federal and State programs), petitioners are urged to contact State
regulatory authorities to determine the current status of their wastes
under the State laws. Furthermore, some States are authorized to
administer a delisting program in lieu of the Federal program, i.e., to
make their own delisting decisions. Therefore, this proposed exclusion,
if promulgated, would not apply in those authorized States. If the
petitioned waste will be transported to any State with delisting
authorization, BMW must obtain delisting authorization from that State
before the waste may be managed as nonhazardous in that State.

IV. Effective Date

This rule, if made final, will become effective immediately upon
final publication. The Hazardous and Solid Waste Amendments of 1984
amended section 3010 of RCRA to allow rules to become effective in less
than six months when the regulated community does not need the six-
month period to come into compliance. That is the case here, because
this rule, if finalized, would reduce the existing requirements for the

[[Page 9795]]

petitioner. In light of the unnecessary hardship and expense that would
be imposed on this petitioner by an effective date six months after
publication and the fact that a six-month deadline is not necessary to
achieve the purpose of section 3010, EPA believes that this exclusion
should be effective immediately upon final publication. These reasons
also provide a basis for making this rule effective immediately, upon
final publication, under the Administrative Procedure Act, pursuant to
5 U.S.C. 553(d).

V. Paperwork Reduction Act

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

VI. National Technology Transfer and Advancement Act

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

VII. Unfunded Mandates Reform Act

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

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

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

IX. Executive Order 12866

Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities or the principles set forth in the
Executive Order.
OMB has exempted this proposed rule from the requirement for OMB
review under section (6) of Executive Order 12866.

X. Executive Order 13045

The Executive Order 13045 is entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997). This order applies to any rule that EPA determines (1) Is
economically significant as defined under Executive Order 12866, and
(2) the environmental health or safety risk addressed by the rule has a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children,

[[Page 9796]]

and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency. This rule is not subject to Executive Order 13045
because this is not an economically significant regulatory action as
defined by Executive Order 12866.

XI. Executive Order 13084

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

XII. Submission to Congress and General Accounting Office

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

XIII. Executive Order 13132

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

List of Subjects in 40 CFR Part 261

Hazardous waste, Recycling, Reporting and recordkeeping
requirements.

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

Dated: January 4, 2001.
Jewell Grubbs,
Acting Director, Waste Management Division.

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

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

Table 1.--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------

* * * * * *
*
BMW Manufacturing Corporation..... Greer, South Carolina............. Wastewater treatment sludge (EPA
Hazardous Waste No. F019) that BMW
Manufacturing Corporation (BMW)
generates by treating wastewater from
automobile assembly plant located on
Highway 101 South in Greer, South
Carolina. This is a conditional
exclusion for up to 2,850 cubic yards
of waste (hereinafter referred to as
``BMW Sludge'') that will be generated
each year and disposed in a Subtitle D
landfill after [insert date of final
rule.] With prior approval by the EPA,
following a public comment period, BMW
may also beneficially reuse the sludge.
BMW must demonstrate that the following
conditions are met for the exclusion to
be valid.

[[Page 9797]]

(1) Delisting Levels: All leachable
concentrations for these metals and
cyanide must not exceed the following
levels (ppm): Barium--100; Cadmium--
0.35; Chromium--5; Cyanide--14, Lead--
1.05; and Nickel--51. These metal and
cyanide concentrations must be measured
in the waste leachate obtained by the
method specified in 40 CFR 261.24,
except that for cyanide, deionized
water must be the leaching medium. The
total concentration of cyanide (total,
not amenable) in the waste, not the
waste leachate, must not exceed 200 mg/
kg. Cyanide concentrations in waste or
leachate must be measured by the method
specified in 40 CFR 268.40, Note 7. The
total concentrations of metals in the
waste, not the waste leachate, must not
exceed the following levels (ppm):
Barium--2,000; Cadmium--500; Chromium--
1,000; Lead--2,000; and Nickel--20,000.
(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 BMW
Sludge meet the delisting levels in
Condition (1).
(A) Initial Verification Testing: BMW
must conduct verification sampling
initially when test runs of aluminum
vehicle parts are run and again when
production of vehicles with aluminum
body parts commences. For verification
sampling during the test runs, BMW must
collect and analyze a minimum of four
composite samples of the dewatered
sludge that is generated from
wastewater treated during the time of
the test runs. For verification
sampling at the initiation of the
production of vehicle models with
aluminum parts, BMW must collect a
minimum of four composite samples from
the first roll-off box of sludge
generated after production of
automobiles with aluminum parts reaches
50 units per day. BMW must analyze for
the constituents listed in Condition
(1). If BMW chooses to beneficially
reuse sludge, and the reuse has been
approved by EPA, following a public
comment period, verification testing of
the sludge must consist of analyzing a
minimum of four composite samples of
the sludge for the constituents listed
in Condition (1).
(B) Subsequent Verification Testing: If
the initial verification testing in
Condition (2)(A) is successful for both
the test runs and the commencement of
production, i.e., delisting levels of
Condition (1) are met for all of the
composite samples, BMW must implement
an annual testing program to
demonstrate that constituent
concentrations measured in the TCLP
extract and total concentrations
measured in the unextracted waste do
not exceed the delisting levels
established in Condition (1).
(3) Waste Holding and Handling: BMW must
store as hazardous all BMW Sludge
generated until verification testing,
as specified in Condition (2)(A), is
completed and valid analyses
demonstrate that Condition (1) is
satisfied. If the levels of
constituents measured in the composite
samples of BMW Sludge do not exceed the
levels set forth in Condition (1), then
the BMW Sludge is non-hazardous and
must be managed in accordance with all
applicable solid waste regulations. If
constituent levels in a composite
sample exceed any of the delisting
levels set forth in Condition (1), the
batch of BMW Sludge generated during
the time period corresponding to this
sample must be managed and disposed of
in accordance with Subtitle C of RCRA.
(4) Changes in Operating Conditions: BMW
must notify EPA in writing when
significant changes in the
manufacturing or wastewater treatment
processes are implemented. EPA will
determine whether these changes will
result in additional constituents of
concern. If so, EPA will notify BMW in
writing that the BMW Sludge must be
managed as hazardous waste F019 until
BMW has demonstrated that the wastes
meet the delisting levels set forth in
Condition (1) and any levels
established by EPA for the additional
constituents of concern, and BMW has
received written approval from EPA. If
EPA determines that the changes do not
result in additional constituents of
concern, EPA will notify BMW, in
writing, that BMW must verify that the
BMW Sludge continues to meet Condition
(1) delisting levels.

[[Page 9798]]

(5) Data Submittals: Data obtained in
accordance with Condition (2)(A) must
be submitted to Jewell Grubbs, Chief,
RCRA Enforcement and Compliance Branch,
Mail Code: 4WD-RCRA, U.S. EPA, Region
4, Sam Nunn Atlanta Federal Center, 61
Forsyth Street, Atlanta, Georgia 30303.
This submission is due no later than 60
days after filling the first roll-off
box of BMW Sludge to be disposed in
accordance with delisting Conditions
(1) through (7) for both the test runs
and again for the commencement of
production. Records of analytical data
from Condition (2) must be compiled,
summarized, and maintained by BMW for a
minimum of three years, and must be
furnished upon request by EPA or the
State of South Carolina, and made
available for inspection. Failure to
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).
(6) Reopener Language: (A) If, at any
time after disposal of the delisted
waste, BMW possesses or is otherwise
made aware of any environmental data
(including but not limited to leachate
data or groundwater monitoring data) or
any other data relevant to the delisted
waste indicating that any constituent
identified in the delisting
verification testing is at a level
higher than the delisting level allowed
by EPA in granting the petition, BMW
must report the data, in writing, to
EPA 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), BMW 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 BMW with an
opportunity to present information as
to why the proposed action is not
necessary. BMW shall have 10 days from
the date of EPA's notice to present
such information.
(E) Following the receipt of information
from BMW, as described in paragraph
(6)(D), or if no such information is
received within 10 days, EPA will issue
a final written determination
describing the Agency actions that are
necessary to protect human health or
the environment, given the information
received in accordance with paragraphs
(6)(A) or (6)(B). Any required action
described in EPA's determination shall
become effective immediately, unless
EPA provides otherwise.
(7) Notification Requirements: BMW must
provide a one-time written notification
to any State Regulatory Agency in a
State to which or through which the
delisted waste described above will be
transported, at least 60 days prior to
the commencement of such activities.
Failure to provide such a notification
will result in a violation of the
delisting conditions and a possible
revocation of the decision to delist.

* * * * * *
*
----------------------------------------------------------------------------------------------------------------

[FR Doc. 01-1049 Filed 2-9-01; 8:45 am]
BILLING CODE 6560-50-P

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