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: November 19, 2001 (Volume 66, Number 223)]
[Proposed Rules]
[Page 57918-57930]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19no01-38]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-7103-6]

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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule and request for comment.

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

SUMMARY: The Environmental Protection Agency (EPA or Agency) today is
proposing to grant a petition submitted by Nissan North America, Inc.,
Smyrna, Tennessee (Nissan), to exclude (or ``delist'') a certain
hazardous waste from the list of hazardous wastes under RCRA
regulation. Nissan will generate the petitioned waste by treating
wastewater from Nissan'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. Nissan petitioned EPA to grant a generator-specific delisting,
because Nissan 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 Nissan, 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 Nissan's petition to delist its F019 waste, and
requests public comment on the proposed decision. If the proposed
delisting becomes a final delisting, Nissan'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 January 3, 2002. 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
December 4, 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,
S.W., Atlanta, Georgia 30303. Send one copy to Nina Vo, Tennessee
Department of Environment and Conservation, 5th Floor, L & C Tower, 401
Church Street, Nashville, Tennessee 37243-1535. Identify your comments
at the top with this regulatory docket number: R4-01-01-NissanP.
Comments may also be submitted by e-mail to
sophianopoulos.judy@epa.gov. If files are attached, please identify the
format.
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 Tennessee Department of
Environment and Conservation, 5th Floor, L & C Tower, 401 Church
Street, Nashville, Tennessee 37243-1535. The EPA, Region 4, Library is
located near the Five Points MARTA station in Atlanta. The Tennessee
Department of Environment and Conservation is located in downtown
Nashville near the intersection of Church Street and 4th Avenue North,
about 0.2 mile northwest of Riverfront Park and 0.2 mile southwest of
Bicentennial Park. 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
``Waste,'' ``Resource Conservation and Recovery Act (RCRA),'' ``RCRA
Program, and then on ``New'' under ``Enforcement and Compliance.''

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 is the EPACML model that EPA used in the past for
determining 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. Where can technical details on the EPACMTP be found?
5. 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 Nissan North
America, Inc., Smyrna, Tennessee (Nissan)
B. What Delisting Levels Did EPA Obtain with DRAS and EPACMTP?
C. Should the Multiple Extraction Procedure (MEP) be Used 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 Affecting Indian Tribal Governments
XII. Submission to Congress and General Accounting Office
XIII. Executive Order 13132

[[Page 57919]]

I. Background

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

On January 16, 1981, as part of its final and interim final
regulations implementing section 3001 of RCRA, EPA published an amended
list of hazardous wastes from non-specific and specific sources. This
list has been amended several times, and is published in 40 CFR 261.31
and 261.32. These wastes are listed as hazardous because they exhibit
one or more of the characteristics of hazardous wastes identified in
subpart C of part 261 (i.e., ignitability, corrosivity, reactivity, and
toxicity) or meet the criteria for listing contained in Sec. 261.11
(a)(2) or (a)(3).
Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
that is described in these regulations generally is hazardous, a
specific waste from an individual facility meeting the listing
description may not be. For this reason, 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.
---------------------------------------------------------------------------

\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 relating to hazardous waste, and 40 CFR part 262 for
regulatory requirements for generators.
---------------------------------------------------------------------------

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 Section 261.3(a)(2)(iv) and
(c)(2)(i), referred to as the ``mixture'' and ``derived-from'' rules,
respectively. Such wastes are also eligible for exclusion and remain
hazardous wastes until excluded. On December 6, 1991, the U.S. Court of
Appeals for the District of Columbia vacated the ``mixture/derived-
from'' rules and remanded them to the EPA on procedural grounds. Shell
Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). On March 3, 1992, EPA
reinstated the mixture and derived-from rules, and solicited comments
on other ways to regulate waste mixtures and residues (57 FR 7628).
These rules became final on October 30, 1992 (57 FR 49278), and should
be consulted for more information regarding waste mixtures and solid
wastes derived from treatment, storage, or disposal of a hazardous
waste. On May 16, 2001, EPA amended the mixture and derived-from rules
for certain types of wastes (66 FR 27218 and 66 FR 27266). 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 all 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
Section 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 Is the EPACML Model That EPA Used in the Past for Determining
Delisting Levels?
In the past, EPA used the EPA Composite Model for Landfills
(EPACML) fate and transport model, modified for delisting, as one
approach for determining the delisting levels for petitioned 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. With the EPACML approach,
as used in the past, 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 56 FR 32993-33012, July 18, 1991. The maximum
estimated waste volume is the maximum number of cubic yards of
petitioned waste to be disposed of each year. The delisting level for
each constituent was 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 resulted in
conservative levels that were protective of

[[Page 57920]]

groundwater, because the model did not assume that the landfill had the
controls required of Subtitle D landfills. A Subtitle D landfill is a
landfill subject to RCRA Subtitle D nonhazardous waste regulations, and
to State and local nonhazardous waste regulations.
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 proposing to use the Delisting Risk Assessment Software
(DRAS),\2\ 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 EPACMTP
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
Nissan's petitioned waste on human health and the environment.
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.
---------------------------------------------------------------------------

\2\ For more information on DRAS and EPACMTP, 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). URL addresses for Region 6
delisting guidance and software are the following:
1. Delisting Guidance Manual http://www.epa.gov/earth1r6/6pd/
rcra_c/pd-o/dlistpdf.htm.
2. Delisting Risk Assessment Software (DRAS) http://www.epa.gov/
earth1r6/6pd/rcra_c/pd-o/dras.htm.
3. DRAS Technical Support Document (DTSD) http://www.epa.gov/
earth1r6/6pd/rcra_c/pd-o/dtsd.htm.
4. DRAS Users Guide http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/
uguide.pdf.
Region 6 has made them available to the public, free of charge.
---------------------------------------------------------------------------

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.
Nissan's petitioned waste is solid, not liquid, and will be disposed 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.\3\ 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.
---------------------------------------------------------------------------

\3\ Nationwide Survey of Industrial Subtitle D Landfills,
Westat, 1987.
---------------------------------------------------------------------------

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.
If EPA makes a final decision to delist Nissan's F019 waste, Nissan
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.
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 summary 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 more
information, 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

[[Page 57921]]

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.

4. Where Can Technical Details on the EPACMTP Be Found?
For more information on DRAS and EPACMTP, please see 65 FR 75637-
75651, December 4, 2000; 65 FR 58015-58031, September 27, 2000; and 66
FR 9781-9798, February 12, 2001. 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). A summary of DRAS is presented
in 66 FR 9781-9798, February 12, 2001. Footnote 2 in Preamble Section
I.B.2. above lists the URL addresses for Region 6 guidance on DRAS.
5. What Methods Is EPA Proposing To Use To Determine Delisting Levels
for This Petitioned Waste?
Nissan submitted to the EPA analytical data from its Smyrna,
Tennessee plant. Samples of wastewater treatment sludge were collected
from roll-off containers over a one-month period, in accordance with a
sampling and analysis plan approved by EPA and the Tennessee Department
of Environment and Conservation. A summary of analytical data is
presented in Table 1 of section II below, with analytical details in
the Table footnotes.
After reviewing the analytical data and information on processes
and raw materials that Nissan submitted in the delisting petition, EPA
developed a list of constituents of concern and calculated delisting
levels and risks using DRAS and EPACMTP DAFs as described above. EPA
requests public comment on this proposed method of calculating
delisting levels and risks for Nissan's petitioned waste.
EPA also requests comment on three additional methods of evaluating
Nissan's delisting petition and determining delisting levels: (1) Use
of the Multiple Extraction Procedure (MEP), SW-846 Method 1320 \4\, 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 obtained by DRAS for
total concentrations; 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 Nissan's constituents of concern
are the following:
---------------------------------------------------------------------------

\4\ ``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.

Arsenic: 5.0 mg/l TCLP; 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;
Silver: 0.14 mg/l TCLP; Vanadium: 1.6 mg/l; Zinc: 4.3 mg/l TCLP;
Acetone: 160 mg/kg; Bis-2-ethylhexyl phthalate: 28 mg/kg; 2-
Butanone: 36 kg/kg; Isobutyl alcohol: 170 mg/kg; 4-Methyl phenol:
5.6 mg/kg; Di-n-octyl phthalate: 28 mg/kg; Phenol: 6.2 mg/kg; and
---------------------------------------------------------------------------
Xylenes: 30 mg/kg.

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 Nissan North America,
Inc., Smyrna, Tennessee (Nissan)

Nissan manufactures light-duty vehicles 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 vehicle bodies. Wastewater treatment sludge does not
meet a hazardous waste listing definition when steel-only vehicle
bodies are manufactured. However, the wastewater treatment sludge
generated at manufacturing plants where aluminum is used as a component
of vehicle bodies, meets the listing definition of F019 in Section
261.3.\5\
---------------------------------------------------------------------------

\5\ ``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.''
---------------------------------------------------------------------------

Nissan petitioned EPA, Region 4, on October 12, 2000, to exclude
this F019 waste, on an upfront, generator-specific basis, from the list
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). Nissan petitioned the EPA
to exclude its F019 waste because Nissan does not use either of these
constituents in the manufacturing process. Therefore, Nissan does not
believe that the waste meets the criteria of the listing.
Nissan 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. Nissan 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

[[Page 57922]]

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 Nissan's
petition.
In support of its petition, Nissan 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 vehicles; (3) the minimum and maximum
annual amounts of wastewater treatment sludge typically generated, and
an estimate of the maximum annual amount expected to be generated in
the future; (4) results of analysis of the currently generated waste at
the Nissan plant in Smyrna, Tennessee for the chemicals in Appendix IX
of 40 CFR part 264: 17 metals; cyanide; 58 volatile organic compounds
and 124 semi-volatile organic compounds; and, in addition to the
Appendix IX list, hexavalent chromium ; (5) results of analysis for
those chemicals (i.e., Appendix IX list, hexavalent chromium) and
fluoride in the leachate obtained from this waste by means of the
Toxicity Characteristic Leaching Procedure ((TCLP), SW-846 Method
1311); (6) results of determinations for the hazardous characteristics
of ignitability, corrosivity, and reactivity, in this waste; (7)
results of determinations of hexavalent chromium and percent solids;
and (8) results of a dye tracer study and source inventory of Nissan's
industrial wastewater system.
The Nissan assembly plant in Smyrna, Tennessee, manufactures light-
duty vehicles. Nissan's Standard Industrial Classification (SIC) code
is 3711. The manufacturing process that will cause F019 to be generated
is conversion coating, when applied to vehicles that contain aluminum.
Conversion coating takes place in three of Nissan's four paint plants
and treats the metal surface of each vehicle 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 Nissan's industrial wastewater pretreatment plant. The wastewater is
monitored for compliance with Nissan's Significant Industrial User's
permit before discharging to the Town of Smyrna publicly owned
treatment works. Treatment results in the formation of insoluble metal
hydroxides. Wastewater treatment sludge is generated when these metal
hydroxides are dewatered in a filter press. The sludge that exits from
the filter press will be classified as F019 when the vehicle bodies
contain aluminum, and the exit from the filter press will be the point
of generation of F019.
Nissan currently generates from 1,000 to 1,500 tons of wastewater
treatment sludge per year at its Smyrna, Tennessee assembly plant, and
estimated a future maximum annual generation rate of 2,000 tons.
Table 1 below summarizes the hazardous constituents and their
concentrations in Nissan's wastewater treatment sludge generated from
the manufacture of steel-only vehicle bodies at the Smyrna, Tennessee
plant.

Table 1.-- Nissan North America, Inc., Smyrna, Tennessee: Wastewater Treatment Sludge Profile
--------------------------------------------------------------------------------------------------------------------------------------------------------
Parameters \1\ NS-01a NS-02a NS-03a NS-04a NS-05a Max. Mean S.D. C.V.
----------------------------------------\2\--------------------------------------------------------------------------------------------------------\3\--
Metals
--------------------------------------------------------------------------------------------------------------------------------------------------------
Arsenic........................ 4.2 3.2U 4.3 4.3 4.3 3.8 0.64 17
3.0
Arsenic--TCLP.................. 0.050U 0.050U 0.050U 0.050U 0.050U NA NA NA
0.050U
Barium......................... 6,200 3,400 2,100 3,400 6,600 4340 1959 45.1
6,600
Barium--TCLP................... 0.14 0.14 0.11 0.13 0.15 0.134 0.0152 11.3
0.15
Cadmium........................ 0.61U 0.81 0.71U 0.81U 0.81 0.708 0.103 14.5
0.60U
Cadmium--TCLP.................. 0.010U 0.010U 0.010U 0.010U 0.010U NA NA NA
0.010U
Chromium--Total................ 100 130 160 150 160 132 23.9 18.1
120
Chromium--Total TCLP........... 0.050U 0.050U 0.050U 0.050U 0.050U NA NA NA
0.050U
Hexavalent Chromium............ 0.80UN* 2.6U 2.9UN 3.2U 6.7 3.24 2.15 66.3
6.7N*
Hexavalent Chromium--TCLP...... 0.25U 0.050U 0.050U 0.050U 0.25U NA NA NA
0.25U
Cobalt......................... 22 21 8.7 16 24 18.3 6.14 33.5
24
Cobalt--TCLP................... 0.19 0.13 0.062 0.080 0.19 0.12 0.053 43.0
0.16
Copper......................... 820* 1,600 750 820 1,600 972 354 36.4
870*
Copper--TCLP................... 0.050U 0.050U 0.050U 0.050U 0.05U NA NA NA
Lead........................... 210 390 320 320 390 294 73.7 25.1
230
Lead--TCLP..................... 0.050U 0.050U 0.050U 0.050U 0.050U NA NA NA
0.050U
Nickel......................... 3,000 4,200 4,100 4,100 4,200 3,700 595.8 16.1
3,100
Nickel--TCLP................... 32 46 41 31 46 36.6 6.58 18.0
33

[[Page 57923]]

Silver......................... 0.61U 0.68 0.71U 0.81U 0.81U 0.682 0.0853 12.5
0.60U
Silver--TCLP................... 0.010U 0.010U 0.010U 0.010U 0.010U NA NA NA
0.010U
Tin............................ 700 590 600 810 810 682 90.4 13.2
710
Tin--TCLP...................... 0.10U 0.10U 0.10U 0.10U 0.10U NA NA NA
0.01U
Vanadium....................... 190 52 18 48 190 99.6 83.6 83.9
190
Vanadium--TCLP................. 0.050U 0.050U 0.050U 0.050U 0.050U NA NA NA
0.050U
Zinc........................... 15,000 15,000 20,000 17,000 20,000 16,800 2,049 12.2
17,000
Zinc--TCLP..................... 17 17 16 7.2 17 14.6 4.19 28.6
16
--------------------------------------------------------------------------------------------------------------------------------------------------------
Inorganic Non-Metals
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Cyanide.................. 3.2 2.9 1.4 1.0 3.2 2.32 1.04 44.7
3.1
Total Cyanide--TCLP............ 0.0095 0.0050U 0.0050U 0.0050U 0.0095 0.00636 0.00202 31.7
0.0073
Fluoride--TCLP................. 0.23 2.1 1.7 1.8 2.1 1.21 0.911 75.3
0.22
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hazardous Waste Characteristics
--------------------------------------------------------------------------------------------------------------------------------------------------------
Corrosivity: Measured pH 8.2 9.1 9.0 9.2 9.2 Minimum: 8.0 8.7 0.56 6.4
[Regulatory limit: £ 8.0
2.0 or ³12.5].
Ignitability: Measured Flash >212 >212 >212 >212 >212 >212 0 0
Point, deg.F [Regulatory >212
limit: 140 deg.F].
Reactive Sulfide: Measured 260 66U 280U 320 320 227 98.4 43.3
hydrogen sulfide released, mg/ 210
kg [Interim Guidance Level:
500 mg/kg].
Reactive Cyanide: Measured 0.61U 0.66U 0.71U 0.81U 0.81U NA NA NA
hydrogen cyanide released, mg/ 0.60U
kg [Interim Guidance Level:
250 mg/kg].
--------------------------------------------------------------------------------------------------------------------------------------------------------
Other Properties
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percent Solids................. 41 38 35 31 42 37.4 4.51 12.0
42
--------------------------------------------------------------------------------------------------------------------------------------------------------

Parameters \1\ NS-01b NS-02b NS-03b NS-04b NS-05b Max. Mean S.D. C.V. \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Volatile Organic Compounds
--------------------------------------------------------------------------------------------------------------------------------------------------------
Acetone........................ 0.570 4.500 0.130J 0.015U 4.500 1.15 1.89 164
0.530
Acetone--TCLP.................. 0.120D 0.160D 0.093JD 0.240BD 0.240BD 0.137 0.0663 48.4
2-Butanone..................... 0.150J 1.000 0.028U 0.029U 1.000 0.287 0.407 142
0.230J
2-Butanone--TCLP............... 0.020U 0.020U 0.020U 0.020U 0.020U NA NA NA
0.020U
Isobutyl alcohol............... 0.024U 7.4 0.73 0.029U 7.4 1.64 3.24 198
0.024U
Isobutyl alcohol--TCLP......... 0.020UD 0.020UD 0.830D 0.020UD 0.830 0.182 0.362 199
0.020UD
Xylenes (all isomers).......... 0.320 2.700 0.270 0.0029U 2.700 0.746 1.10 148
0.440
Xylenes (all isomers)--TCLP.... 0.0020U 0.033D 0.007JD 0.011JD 0.033 0.0110 0.0129 117
0.0020U
--------------------------------------------------------------------------------------------------------------------------------------------------------
Semi-volatile Organic Compounds
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 57924]]

Parameters \1\ NS-01a NS-02a NS-03a NS-04a NS-05a Max. Mean S.D. C.V. \3\
----------------------------------------\2\-------------------------------------------------------------------------------------------------------------
Bis(2-ethylhexyl) phthalate.... 520JD 45.0J 92.0J 22.0U 520 222 235 106
430JD
Bis(2-ethylhexyl) phthalate-- 0.004U 0.020U 0.020U 0.020U 0.020U NA NA NA
TCLP. 0.004U
Di-n-octyl phthalate........... 390D 110 150 22.0JD 390 198 152 76.8
320D
Di-n-octyl phthalate--TCLP..... 0.004U 0.020U 0.020U 0.020U 0.020U NA NA NA
0.004U
4-Methylphenol................. 17.0JD 4.2U 5.1U 3.4U 17.0 6.96 5.66 81.3
5.1JD
4-Methylphenol--TCLP........... 0.100D 0.040U 0.040U 0.040U 0.100 0.0632 0.0318 50.3
0.096D
Phenol......................... 10.0JD 2.10U 2.60U 1.70U 10.0 3.96 3.44 86.8
3.40JD
Phenol--TCLP................... 0.036D 0.028JD 0.015JD 0.010U 0.038 0.0254 0.0125 49.1
0.038D
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Parameters are the chemicals or properties analyzed.
\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 in the row where the name of the chemical is
followed by ``--TCLP.'' B = Compound detected in blank; D = Sample had to be diluted; E = Parameter concentration estimated due to matrix
interference; J = Estimated result; the actual result is likely to be greater than zero but less than the estimated value; N = Predigested spike
recovery not within control limits; NA = Not applicable; U = Not detected above the method detection limit, which is the value preceding the U; * =
Duplicate analysis was not within control limits. The metals, antimony, beryllium, mercury, selenium, and thallium were not detected by total analysis
of samples and are not included in the table in order to save space. Xylene (including all its isomers), 2-butanone (methyl ethyl ketone or MEK),
isobutyl alcohol, and acetone were the only volatile organic compounds (VOCs) found at a level equal to or greater than 1 part per million by total
analysis of the waste and are the only VOCs included in the table. For the same reason, bis(2-ethylhexyl) phthalate, di-n-octyl phthalate, 4-
methylphenol (p-cresol) \6\, and phenol are the only semi-volatile organic compounds included in the table. Columns 2 through 4 in the table heading
contain sample identification numbers. ``NS'' stands for Nissan samples; numbers 01 through 05 are sequential numbers linking samples to the roll-offs
from which they were collected. Numbers 01 and 02 were from the first roll-off sampled (see Note 4 below), and Numbers 03 through 05 were from roll-
offs two through four, respectively. The letter ``a'' denotes a composite sample and the letter ``b'' denotes a grab sample. As described in the
petition, four randomly selected roll-offs were sampled over the time period, by collecting one composite sample per roll-off. Each composite sample
was a mixture of twelve vertical core samples. Each vertical core sample was approximately six to ten inches in depth and one inch in diameter; three
vertical core samples were collected at each of four randomly selected locations per roll-off. Grab samples of each roll-off were collected for VOC
analysis (see Note 4 below).
\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 than one sample. If a chemical was not detected in any of the samples, NA (not applicable) was written in the last three columns.
Detection limits reported by the laboratory were used in the statistical calculations when chemicals were not detected (U) in some of the samples.
This is a conservative assumption, which is likely to result in overestimation of the mean concentration.
\4\ One of the four composite samples was collected from a roll-off that was representative of plant maintenance activities and split into two samples
for analysis: Sample Number NS-01a and its field duplicate, NS-02a. NS-01b was a grab sample from this roll-off, for VOC analysis, and NS-02b was a
field duplicate of this sample. Composite samples NS-03a, NS-04a, and NS-05a were collected from three roll-offs that were representative of routine
plant operations. Grab samples NS-03b, NS-04b, and NS-05b were collected from these three roll-offs for VOC analysis.

EPA concluded after reviewing Nissan's waste management and waste
history information that no other hazardous constituents, other than
those tested for, are likely to be present in Nissan's petitioned
waste. In addition, on the basis of test results and other information
provided by Nissan, pursuant to section 260.22, EPA concluded that the
petitioned waste will not exhibit any of the characteristics of
ignitability, corrosivity, or reactivity. See Sections 261.21, 261.22,
and 261.23, respectively.
During its evaluation of Nissan'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 Nissan's petitioned
waste. (A description of EPA's assessment of the potential impact of
airborne dispersal of Nissan'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 TCLP 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.

[[Page 57925]]

B. What Delisting Levels Did EPA Obtain With DRAS and EPACMTP?

In order to account for possible variability in the generation
rate, EPA calculated delisting levels using Nissan's estimated maximum
generation rate of 2,000 tons of wastewater treatment sludge per year.
EPA converted the 2,000 tons to a waste volume of 2,400 cubic yards, by
using the density of water for the density of the sludge. 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).
Delisting levels and risk levels calculated by DRAS, using the
EPACMTP model, are presented in Table 2 below. DRAS found that the
major pathway for human exposure to this waste is groundwater
ingestion, and the majority of the delisting and risk levels for the
TCLP leachate of the waste were calculated based on that pathway. EPA
requests public comment on using DRAS-calculated values based on MCLs,
when these would result in more conservative delisting levels. The
input values required by DRAS were the chemical constituents in
Nissan's petitioned waste; their maximum reported concentrations in the
TCLP extract of the waste and in the unextracted waste (See Table 1,
Preamble Section II.A.); the maximum annual volume to be disposed
(2,400 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
carcinogenic constituents detected in the waste are cadmium, hexavalent
chromium, and bis(2-ethylhexyl) phthalate. 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
2, 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: 20,000; 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 Nissan's petitioned waste
were all well 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.)
---------------------------------------------------------------------------

\6\ Because 4-methylphenol could not be distinguished from 3-
methylphenol in all samples, the values reported for 4-methylphenol
in Table 1 include the values for 3-methylphenol.

Table 2.--Delisting and Risk Levels Calculated by DRAS With EPACMTP Model for Nissan's Petitioned Waste
--------------------------------------------------------------------------------------------------------------------------------------------------------
DRAS-Calculated Hazard
Delisting Level (mg/l DRAS-Calculated Risk for Quotient for Maximum
Constituent TCLP)/Delisting level DAF Maximum Concentration of Concentration of Non-
in TCLP Based on MCL Carcinogen in Waste Carcinogen in Waste
--------------------------------------------------------------------------------------------------------------------------------------------------------
Inorganic Constituents
--------------------------------------------------------------------------------------------------------------------------------------------------------
Arsenic............................. 2.63 x 10-\3\/2.70... 54.............................. 9.5 x 10-\6\................. ......................
Barium.............................. 206*/157*.............. 78.2............................ ............................... 8.98 x 10-\4\.
Cadmium............................. 1.58*/0.422............ 84.4............................ 5.78 x 10-\15\............... 0.00316.
Chromium............................ 6.10 x 10\5\*/1.08 x ................................ 1.08 x 10\4\................. 1.23 x 10-\7\.
10\3\*.
Hexavalent Chromium................. Not Calculable; Risk 43.6............................ 9.11 x 10-\14\............... ......................
Based on Inhalation of
Particles in Air.
Copper.............................. 2.96 x 10\4\/2.56 x 1.97 x 10\4\.................. ............................... 3.23 x 10-\5\.
10\4\.
Cyanide............................. 38.0/10.1.............. 50.6............................ ............................... 2.50 x 10-\4\.
Lead................................ 211*................... 1.41 x 10\4\.................. ............................... Not Calculable; No
Reference Dose for
Lead.
Nickel.............................. 79.4................... 106............................. ............................... 0.579.
Zinc................................ 789.................... 70.............................. ............................... 0.0216.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Organic Constituents
--------------------------------------------------------------------------------------------------------------------------------------------------------
Acetone............................. 201.................... 53.4............................ ............................. 0.00125.
Bis(2-ethylhexyl)phthalate.......... 0.0787/0.321........... 53.4............................ 1.64 x 10-\7\................ ......................
4-Methylphenol...................... 10..................... 53.4............................ ............................... 0.0119.
Di-n-octyl phthalate................ 0.0984................. 75.9............................ ............................... 0.102.
Isobutyl alcohol.................... 602.................... 53.4............................ ............................... 0.00145.
Phenol.............................. 1,200.................. 53.4............................ ............................... 3.47 x 10-\5\.
Xylenes............................. 2,810/534.............. 53.4............................ ............................... 2.23 x 10-\5\.
Total Hazard Quotient for All Waste ....................... ................................ ............................... 0.726.
Constituents.
Total Carcinogenic Risk for the ....................... ................................ 9.66 x 10-\6\ ...............
Waste (due to Arsenic, Cadmium,
Hexavalent Chromium, and Bis(2-
ethylhexyl) phthalate).
--------------------------------------------------------------------------------------------------------------------------------------------------------
* 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.
The Safe Drinking Water Act standard for copper is a recommended secondary standard, rather than an enforceable MCL.

[[Page 57926]]

EPA proposes to use the delisting levels in the TCLP leachate
calculated by the DRAS, using the EPACMTP (Table 2), in combination
with the limits on total concentrations proposed in the paragraph
preceding Table 2. These proposed delisting levels are summarized in
Table 3, below. EPA is proposing to base the delisting levels for
chromium on analysis for total chromium, not hexavalent chromium, for
the following reasons: (1) Hexavalent chromium was undetected in the
TCLP leachate of the petitioned waste; (2) the maximum reported
concentration of total chromium in the unextracted waste was only 160
mg/kg; and (3) the maximum reported concentration of hexavalent
chromium in the unextracted waste was only 6.7 mg/kg. EPA is not
proposing delisting levels for cobalt, copper, silver, tin, vanadium,
zinc, acetone, isobutyl alcohol, phenol, and xylenes, because the DRAS-
calculated TCLP levels for these constituents are at least two orders
of magnitude greater than the maximum reported concentrations in the
TCLP leachate of the petitioned waste. EPA is not proposing delisting
levels for arsenic for the following reasons: (1) TCLP leachate
concentration was non-detect; (2) total concentration in the
unextracted waste was below the background soil concentration for most
of Tennessee, below the national average background, and three orders
of magnitude below the DRAS allowable total concentration; and (3) DRAS
found no ecological risk at the maximum reported concentrations and a
human cancer risk within the range of 10-\4\ to
10-\6\ assuming a TCLP concentration equal to one-half the
reporting limit of the analytical laboratory.

Table 3.--Summary of Delisting Levels for Nissan's Petitioned Waste
----------------------------------------------------------------------------------------------------------------
DRAS-
Calculated
Constituent Delisting Proposed Total Concentrations (mg/kg in unextracted
Level (mg/l waste)
TCLP)
----------------------------------------------------------------------------------------------------------------
Inorganic Constituents
----------------------------------------------------------------------------------------------------------------
Barium................................... *100.0 20,000
Cadmium.................................. 0.422 500.
Chromium................................. *5.0 1,000
Cyanide.................................. 10.1 200 (Total, not Amenable)
Lead..................................... *5.0 2,000
Nickel................................... 79.4 20,000
----------------------------------------------------------------------------------------------------------------
Organic Constituents
----------------------------------------------------------------------------------------------------------------
Bis(2-ethylhexyl) phthalate.............. 0.0787 .....................................................
Di-n-octyl phthalate..................... 0.0984 .....................................................
4-Methylphenol........................... 10 .....................................................
----------------------------------------------------------------------------------------------------------------
* DRAS-calculated delisting level was higher than the TC level; therefore, the delisting level was set at the TC
level.

C. Should the Multiple Extraction Procedure (MEP) Be Used 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 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 data can be used to indicate whether a petitioned waste would
be expected to leach hazardous constituents over the life of a
landfill.\7\ The average life of a landfill is approximately 20 years.
(See 56 FR 32993, July 18, 1991; and 56 FR 67197, Dec. 30, 1991.)
---------------------------------------------------------------------------

\7\ This estimate would be based on the following type of
calculation for a 100-gram sample, using nickel as an example: %
nickel leached out over a long period of time = 100 x (total
number of milligrams of nickel in all the sample MEP extracts)
the number of milligrams of nickel originally present in
the 100-gram sample.
---------------------------------------------------------------------------

EPA requests public comment on whether the MEP should be used in
the evaluation of Nissan's petitioned waste.

D. Conclusion

After reviewing Nissan's processes, the EPA concludes that (1) no
hazardous constituents of concern are likely to be present in Nissan'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 Nissan'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 Nissan'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 Nissan'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

[[Page 57927]]

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, Nissan must obtain delisting authorization from that
State before the waste may be managed as nonhazardous in that State.

IV. Effective Date

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

V. Paperwork Reduction Act

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

VI. National Technology Transfer and Advancement Act

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

VII. Unfunded Mandates Reform Act

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

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

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

[[Page 57928]]

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 of policy issues arising out of legal
mandates, the President's priorities or the principles set forth in the
Executive Order.
OMB has exempted this proposed rule from the requirement for OMB
review under section (6) of Executive Order 12866.

X. Executive Order 13045

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

XI. Executive Order 13084 Affecting Indian Tribal Governments

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

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

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

Dated: November 5, 2001.
James S. Kutzman,
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

[[Page 57929]]

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

* * * * * * *
Nissan North America, Inc................................ Smyrna, Tennessee........................ Wastewater treatment sludge (EPA Hazardous Waste
No. F019) that Nissan North America, Inc.
(Nissan) generates by treating wastewater from
the automobile assembly plant located at 983
Nissan Drive in Smyrna, Tennessee. This is a
conditional exclusion for up to 2,400 cubic yards
of waste (hereinafter referred to as ``Nissan
Sludge'') that will be generated each year and
disposed in a Subtitle D landfill after [insert
date of final rule.]
Nissan must demonstrate that
the following conditions are met for the
exclusion to be valid.
(1) Delisting Levels: All leachable concentrations
for these metals, cyanide, and organic
constituents must not exceed the following levels
(ppm): Barium-100.0; Cadmium-0.422; Chromium-5.0;
Cyanide-10.1, Lead-5.0; and Nickel-79.4; Bis(2-
ethylhexyl) phthalate-0.0787; Di-n-octyl
phthalate -0.0984; and 4-Methylphenol-10.0. These
concentrations must be measured in the waste
leachate obtained by the method specified in 40
CFR 261.24, except that for cyanide, deionized
water must be the leaching medium. 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-20,000; 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 Nissan Sludge meet the delisting
levels in Condition (1).
(A) Initial Verification Testing: Nissan must
collect and analyze a representative sample from
each of the first eight rolloff boxes of Nissan
sludge generated in its wastewater treatment
system after [insert date of final rule]. Nissan
must analyze for the constituents listed in
Condition (1). Nissan must report analytical test
data, including quality control information, no
later than 60 days after generating the first
Nissan Sludge to be disposed in accordance with
the delisting Conditions (1) through (7).
(B) Subsequent Verification Testing: If the
initial verification testing in Condition (2)(A)
is successful, i.e., delisting levels of
condition (1) are met for all of the eight
rolloffs described in Condition (2)(A), Nissan
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: Nissan must store
as hazardous all Nissan 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 Nissan Sludge do not exceed
the levels set forth in Condition (1), then the
Nissan Sludge is non-hazardous and must be
managed in accordance with all applicable solid
waste regulations. If constituent levels in a
composite sample exceed any of the delisting
levels set forth in Condition (1), the batch of
Nissan Sludge generated during the time period
corresponding to this sample must be managed and
disposed of in accordance with Subtitle C of
RCRA.
(4) Changes in Operating Conditions: Nissan must
notify EPA in writing when significant changes in
the manufacturing or wastewater treatment
processes are implemented. EPA will determine
whether these changes will result in additional
constituents of concern. If so, EPA will notify
Nissan in writing that the Nissan Sludge must be
managed as hazardous waste F019 until Nissan has
demonstrated that the wastes meet the delisting
levels set forth in Condition (1) and any levels
established by EPA for the additional
constituents of concern, and Nissan has received
written approval from EPA. If EPA determines that
the changes do not result in additional
constituents of concern, EPA will notify Nissan,
in writing, that Nissan must verify that the
Nissan Sludge continues to meet Condition (1)
delisting levels.

[[Page 57930]]

(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, S.W., Atlanta, Georgia 30303. This
submission is due no later than 60 days after
generating the first batch of Nissan Sludge to be
disposed in accordance with delisting Conditions
(1) through (7). Records of analytical data from
Condition (2) must be compiled, summarized, and
maintained by Nissan for a minimum of three
years, and must be furnished upon request by EPA
or the State of Tennessee, and made available for
inspection. Failure to submit the required data
within the specified time period or maintain the
required records for the specified time will be
considered by EPA, at its discretion, sufficient
basis to revoke the exclusion to the extent
directed by EPA. All data must be accompanied by
a signed copy of the certification statement in
40 CFR 260.22(i)(12).
(6) Reopener Language: (A) If, at any time after
disposal of the delisted waste, Nissan possesses
or is otherwise made aware of any environmental
data (including but not limited to leachate data
or groundwater monitoring data) or any other data
relevant to the delisted waste indicating that
any constituent identified in the delisting
verification testing is at a level higher than
the delisting level allowed by EPA in granting
the petition, Nissan must report the data, in
writing, to EPA within 10 days of first
possessing or being made aware of that data. (B)
If the testing of the waste, as required by
Condition (2)(B), does not meet the delisting
requirements of Condition (1), Nissan must report
the data, in writing, to EPA within 10 days of
first possessing or being made aware of that
data. (C) Based on the information described in
paragraphs (6)(A) or (6)(B) and any other
information received from any source, EPA will
make a preliminary determination as to whether
the reported information requires that EPA take
action to protect human health or the
environment. Further action may include
suspending or revoking the exclusion, or other
appropriate response necessary to protect human
health and the environment. (D) If EPA determines
that the reported information does require Agency
action, EPA will notify the facility in writing
of the action believed necessary to protect human
health and the environment. The notice shall
include a statement of the proposed action and a
statement providing Nissan with an opportunity to
present information as to why the proposed action
is not necessary. Nissan shall have 10 days from
the date of EPA's notice to present such
information.
(E) Following the receipt of information from
Nissan, as described in paragraph (6)(D), or if
no such information is received within 10 days,
EPA will issue a final written determination
describing the Agency actions that are necessary
to protect human health or the environment, given
the information received in accordance with
paragraphs (6)(A) or (6)(B). Any required action
described in EPA's determination shall become
effective immediately, unless EPA provides
otherwise.
(7) Notification Requirements: Nissan must provide
a one-time written notification to any State
Regulatory Agency in a State to which or through
which the delisted waste described above will be
transported, at least 60 days prior to the
commencement of such activities. Failure to
provide such a notification will result in a
violation of the delisting conditions and a
possible revocation of the decision to delist.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. 01-28624 Filed 11-16-01; 8:45 am]
BILLING CODE 6560-50-P

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

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

Local Navigation