05-17364. Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Proposed Exclusion

AGENCY:

The Environmental Protection Agency (the EPA).

ACTION:

Proposed rule and request for comment.

SUMMARY:

The EPA is proposing to grant a petition submitted by Saturn Corporation (Saturn) to exclude or “delist” wastewater treatment plant (WWTP) sludge generated from conversion coating on aluminum at Saturn's integrated automotive assembly facility located at 100 Saturn Parkway in Spring Hill, Tennessee, from the requirements of the hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA). This exclusion would be valid only when the sludge is disposed of in a Subtitle D landfill that is permitted, licensed, or registered by a state to manage industrial solid waste. The EPA used the Delisting Risk Assessment Software (DRAS) in the evaluation of the potential impact of the petitioned waste on human health and the environment.

The EPA bases its proposed decision to grant the petition based on an evaluation of waste-specific information provided by Saturn. This proposed decision, if finalized, conditionally excludes the petitioned waste from the requirements of the RCRA hazardous waste regulations.

If finalized, the EPA would conclude that Saturn's petitioned waste is nonhazardous with respect to the original listing criteria and that there are no other factors that would cause the waste to be hazardous.

DATES:

The EPA will accept public comments on this proposed decision until October 17, 2005. The EPA will stamp comments received after the close of the comment period as 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 to EPA by September 15, 2005. The request must contain the information prescribed in 40 CFR 260.20(d).

ADDRESSES:

Please send three copies of your comments. You should send two copies to the Chief, North Section, RCRA Enforcement and Compliance Branch, Waste Division, U.S. Environmental Protection Agency Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street S.W., Atlanta, Georgia, 30303. You should also send one copy to Mike Apple, Director, Division of Solid Waste Management, Tennessee Department of Environment and Conservation, 5th Floor, L&C Tower, 401 Church Street, Nashville, Tennessee, 37243-1535. You should identify your comments at the top with this regulatory docket number: R4DLP-0502-Saturn. You may submit your comments electronically to Kristin Lippert at [e-mail].

You should address requests for a hearing to Narindar M. Kumar, Chief, RCRA Enforcement and Compliance Branch, Waste Division, U.S. Environmental Protection Agency Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street SW., Atlanta, Georgia 30303.

FOR FURTHER INFORMATION CONTACT:

For general and technical information about this final rule, contact Kristin Lippert, North Enforcement and Compliance Section, (Mail Code 4WD-RCRA), RCRA Enforcement and Compliance Branch, U.S. Environmental Protection Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street S.W., Atlanta, Georgia 30303 or call [phone].

SUPPLEMENTARY INFORMATION:

The information in this section is organized as follows:

I. Background

A. What is EPA's list of hazardous wastes?

B. What is a delisting petition, and what does it require of a petitioner?

C. What regulations allow a waste to be delisted?

D. What factors must the EPA consider in deciding whether to grant a delisting petition?

II. Saturn's Petition To Delist Its Waste

A. What waste did Saturn petition EPA to delist?

B. How is the petitioned waste generated?

C. What information did Saturn submit in support of its petition?

III. EPA's Evaluation of Saturn's Petition

A. How did the EPA evaluate the information submitted?

B. What did the EPA conclude about this waste?

C. What other factors did the EPA consider in its evaluation?

IV. Proposal To Delist WWTP Sludge From Saturn's Automobile Assembly Facility

A. What action is EPA proposing?

B. What are the terms for disposal of Saturn' s WWTP sludge pursuant to this exclusion?

C. With what conditions must Saturn comply for its WWTP sludge to be delisted?

D. What are the maximum allowable concentrations of hazardous constituents in the waste?

E. What happens if Saturn is unable to meet the terms and conditions of this delisting?

V. Public Comments

A. How may interested parties submit comments?

B. How may interested parties review the docket or obtain copies of the proposed exclusion?

VI. Regulatory Impact

VII. Regulatory Flexibility Act

VIII. Paperwork Reduction Act

IX. Unfunded Mandates Reform Act

X. Executive Order 13045

XI. Executive Order 13084

XII. National Technology Transfer and Advancements Act

XIII. Executive Order 13132 Federalism

I. Background

A. What Is EPA's List of Hazardous Wastes?

The EPA published an amended list of hazardous wastes from nonspecific and specific sources on January 16, 1981, as part of its final and interim final regulations implementing Section 3001 of RCRA. The EPA has amended this list several times and published it in Title 40 Code of Federal Regulations (40 CFR) 261.31 and 261.32. The wastes are listed as hazardous because: (1) They typically and frequently exhibit one or more of the characteristics of hazardous wastes identified in Subpart C of Part 261 (ignitability, corrosivity, reactivity, and toxicity) or (2) they meet the criteria for listing contained in 40 CFR 261.11(a)(2) or (a)(3).

Individual waste streams may vary, however, depending on raw materials, industrial processes, and other factors. Thus, a specific waste from an individual facility meeting the listing description may not be hazardous. For this reason, 40 CFR 260.20 and 260.22 provide an exclusion procedure, called delisting, which allows persons to prove that the EPA should not regulate a specific waste from a particular generating facility as a hazardous waste.

B. What Is a Delisting Petition, and What Does It Require of a Petitioner?

A delisting petition is a request from a facility to the EPA or an authorized State to exclude waste from the list of hazardous wastes pursuant to RCRA. The facility petitions the EPA because it does not consider the wastes hazardous under RCRA regulations. In a delisting petition, the petitioner must show that the waste, generated at a particular facility, does not meet any of the criteria for which EPA listed the waste as set forth in 40 CFR 261.11 and the background documents for the listed waste. In addition, a petitioner must demonstrate pursuant to 40 CFR 260.22 that the waste does not exhibit any of the hazardous waste characteristics (ignitability, reactivity, corrosivity, and toxicity) and must present sufficient information for the EPA to decide whether factors other than those for which the waste was listed warrant retaining it as a hazardous waste (see 40 CFR 260.22, 42 U.S.C. 6921(f), and the background documents for the listed waste).

Generators remain obligated under RCRA to confirm that their waste remains nonhazardous based on the hazardous waste characteristics even if the EPA has “delisted” the waste.

C. What Regulations Allow a Waste To Be Delisted?

Under 40 CFR 260.20, 260.22, and 42 U.S.C. 6921(f), a generator may petition the EPA to remove its waste from the lists of hazardous wastes contained in 40 CFR 261.31 and 261.32. Specifically, 40 CFR 260.20 allows any person to petition the Administrator to modify or revoke any provisions of Parts 260 through 266, 268, and 273 of 40 CFR.

D. What Factors Must the EPA Consider in Deciding Whether To Grant a Delisting Petition?

Besides considering the criteria in 40 CFR 260.22(a) and Section 3001(f) of RCRA, 42 U.S.C. 6921(f), and information in the background documents for the listed waste, the EPA must consider any factors (including additional constituents) other than those for which the EPA listed the waste if a reasonable basis exists that the additional factors could cause the waste to be hazardous.

The EPA must also consider as hazardous waste mixtures containing listed hazardous wastes and wastes derived from treating, storing, or disposing of listed hazardous waste (see 40 CFR 261.3(a)(2)(iii) and (iv) and (c)(2)(i), called the “mixture” and “derived-from” rules, respectively). These wastes are also eligible for exclusion and remain hazardous wastes until excluded (see 66 FR 27266, May 16, 2001).

II. Saturn's Petition To Delist Its Waste

A. What Waste Did Saturn Petition the EPA To Delist?

On December 13, 2004, Saturn petitioned the EPA to exclude its dewatered WWTP sludge generated at its facility in Spring Hill, Tennessee, from the lists of hazardous waste contained in 40 CFR 261.31 and 261.32. The WWTP sludge (EPA Hazardous Waste No. F019) is generated by treating wastewater resulting from the chemical conversion coating of aluminum. In its petition, Saturn requested that the EPA grant an exclusion for 3,000 cubic yards per calendar year of dewatered WWTP sludge.

B. How Is the Petitioned Waste Generated?

Saturn is an integrated automobile production facility located in Spring Hill, Tennessee. Wastewater at the Saturn facility is generated from various manufacturing and assembly processes and includes oily wastewater from cooling and cutting operations associated with engine manufacturing, rinse waters and overflows from the zinc phosphating and electrocoating processes, and wash water from paint spray booth operations. The process used to treat wastewater generated from the manufacturing and assembly operations consists of a complex system of primary and secondary pretreatment processes and controls. The process produces a sludge from the treatment of soluble metals in wastewater by equalization, pH adjustment, chemical treatment, and metals precipitation. The sludge is subsequently dewatered in a plate and frame filter press before it is transported off-site for disposal.

The production process at the Saturn facility includes the application of an aluminum sound-deadening patch to some production vehicles. Possible future changes to be made in the manufacturing process, which will not significantly affect the characteristics of the WWTP sludge, could involve the use of aluminum body components (and modification to the phosphate bath) in addition to the current steel components.

The conversion coating process is not regulated by RCRA when applied to steel but when aluminum components are incorporated into the automobile bodies, the WWTP sludge becomes regulated as RCRA hazardous waste F019. While the sludge may meet the definition of F019, the original listing of WWTP sludge from the conversion coating on aluminum was not based on a zinc phosphating process, and the addition of aluminum components on the automobile bodies does not introduce any constituents of concern into the sludge. However, before a waste can be delisted, the petitioner must demonstrate that there are no hazardous constituents in the sludge from other operations in the plant or other factors that might cause the waste to be hazardous.

The 40 CFR part 261 Appendix VIII hazardous constituents for which EPA listed F019 hazardous wastes as hazardous include hexavalent chromium and cyanide (complexed). The chemical conversion coating process performed by Saturn is a phosphating process that does not utilize materials containing salts of chromium or cyanide. Therefore, the WWTP sludge generated by Saturn would not contain the constituents for which F019 was listed as generated from its chemical conversion coating process.

C. What Information Did Saturn Submit in Support of Its Petition?

In support of its petition Saturn has submitted laboratory analysis of its WWTP sludge. The laboratory analysis submitted includes the following: (1) Analysis performed on samples of its dewatered WWTP sludge taken and analyzed by EPA: (2) analysis of the dewatered WWTP sludge performed by Saturn on split samples provided to the facility by EPA and (3) analysis of the dewatered WWTP sludge performed by Saturn on samples taken by the facility.

The analysis performed by Saturn on the split samples of the WWTP sludge provided to the facility by EPA was submitted for laboratory testing for the entire 40 CFR Part 264 Appendix IX constituent list (including volatile organic compounds (VOCs), semi-volatile organic compounds (SVOCs), metals, and PCBs) and hexavalent chromium, TCLP metals, cyanide, and total solids. Based on the laboratory data, data validation results, and Saturn's communications with the EPA, Saturn prepared a Sampling and Analysis Plan which was submitted to the EPA and approved.

In accordance with the approved Sampling and Analysis Plan and to support its petition, Saturn collected additional WWTP sludge samples for laboratory testing. The samples were collected from six roll-off containers representing waste generated at Saturn over a seven-week period. The samples were analyzed as follows: (1) Samples for VOC analyses (total and TCLP) were collected from six roll-off containers. The first sample was analyzed for the 40 CFR part 264 Appendix IX VOC constituent list (total and TCLP). VOCs (total and TCLP) detected in the first sample were tested in the samples collected from the second through the sixth roll-off containers. (2) Samples from the six roll-off containers were analyzed for total and TCLP bis(2-ethylhexyl)phthalate. (3) Samples from the six roll-off containers were analyzed for total and TCLP metals (antimony, arsenic, barium, beryllium, chromium, cobalt, copper, lead, mercury, nickel, thallium, tin, vanadium, and zinc) and for hexavalent chromium. (4) Samples from the six roll-off containers were analyzed for corrosivity, total and TCLP cyanide, ignitability, sulfide, oil and grease, and total solids. The Toxicity Characteristic Leaching Procedure (TCLP), SW-846 Method 1311, was used as the extraction procedure for testing the volatile and semi-volatile constituents of concerns. Leachable metals were tested using the Extraction Procedure for Oily Wastes (OWEP), SW-846 Method 1330A. The pH of each sample was measured using SW-846 Method 9045C, and a determination was made that the waste was not ignitable, corrosive, or reactive (see 40 CFR 261.21-261.23). Oil and grease was analyzed using SW-846 Method 9071B, total sulfide was tested using SW-846 Method 9034, and total cyanide was performed using Method SW-846 Method 9012A.

Composite and grab samples of dewatered WWTP sludge were collected in accordance with the approved Sampling and Analysis Plan on August 19, 2004 and submitted for laboratory testing. Upon receipt of the laboratory testing results, the data was validated by a third party. The maximum values of constituents detected in any sample of the WWTP sludge or in a TCLP extract of the WWTP sludge are summarized in Table 1.

Table 1.—Maximum Total and TCLP Concentrations in the Dewatered WWTP Sludge and Corresponding Delisting Limits

Constituent	Maximum concentration observed 1		Maximum allowable delisting level (3,000 cubic yards)		Maximum allowable groundwater concentration (μg/l)
	Total (mg/kg)	TCLP (mg/l)	Total (mg/kg)	TCLP (mg/l)
Volatile Organic Compounds
Acetone	<7.5	1.7	141,000,000	171	3,750
Semi-Volatile Organic Compounds
Bis(2-ethylhexyl)phthalate	<25	<0.0050	51,400	0.146	1.50
Metals
Antimony	56	<0.05 J	374,000	0.494	6.0
Arsenic	<50	<0.02	312,000	0.224	5.0
Barium	94	<0.35	10,400,000	100	2,000
Beryllium	3.1	<0.029	16,200	0.998	4.0
Chromium	1,310 J	<0.16	10,300,000	5.0	100
Chromium (hexavalent)	<4.2	NT	3,320	3.71	NA
Cobalt	3.6	<0.038	84,400,000	NA	2,250
Copper	91	0.25	56,300,000	21,800	1,300
Lead	108	<0.19	500,000	5.0	15.0
Mercury	0.47	<0.0006	1.82	0.195	2.00
Nickel	4,400	24.2 J	2,430,000	67.8	750
Thallium	<20	<0.026	2,140	0.211	2.00
Tin	<100	3.18	844,000,000	NA	22,500
Vanadium	9.9 J	<0.27	9,850,000	50.6	263
Zinc	17,200	5.72	17,200,000	673	11,300
Cyanide	0.52	<0.05	1,180,000	8.63	200
1 These levels represent the highest concentration of each constituent found in any one sample and do not necessarily represent the specific levels found in one sample.
< Not detected at the specified concentration.
NA Not applicable.
NT Not tested.
J Estimated Concentration.

III. EPA's Evaluation of Saturn's Petition

A. How Did the EPA Evaluate the Information Submitted?

In developing this proposal, the EPA considered the original listing criteria and the additional factors required by the Hazard and Solid Waste Amendments of 1984 (HSWA). See Section 222 of HSWA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(2)-(4). The EPA evaluated the petitioned waste against the listing criteria and factors cited in 40 CFR 261.11(a)(2) and (3). These factors include: (1) Whether the waste is considered acutely toxic; (2) the toxicity of the constituents; (3) the concentrations of the constituents in the waste; (4) the tendency of the hazardous constituents to migrate and to bioaccumulate; (5) its persistence in the environment once released from the waste; (6) plausible and specific types of management of the petitioned waste; (7) the quantity of waste produced; and (8) waste variability.

For this delisting determination, the EPA assumed that the WWTP sludge would be disposed in a Subtitle D landfill. Consistent with previous delistings, the EPA identified plausible exposure routes (groundwater, surface water and air) for hazardous constituents present in the petitioned waste based upon improper management of a Subtitle D landfill. To evaluate the waste, the EPA used the Delisting Risk Assessment Software program (DRAS), a Windows-based software tool, to estimate the potential release of hazardous constituents from the petitioned waste and to predict the risk associated with those releases.

A detailed description of the DRAS program and revisions is available at 65 FR 58015, 65 FR 59000, 65 FR 75879, and 67 FR 10341. The DRAS uses EPA's Composite Model for Leachate Migration with Transformation Products (EPACMTP) to predict the potential for release of hazardous constituents to groundwater from landfilled wastes and subsequent potential routes of exposure to a receptor. For a release to groundwater, the EPA considered routes of exposure to a human receptor from ingestion of contaminated groundwater, inhalation from groundwater via showering and dermal contact while bathing. The DRAS program also considers the surface water pathway from the potential erosion of waste from runoff from an open landfill. It evaluates the potential risk to a human receptor from potential ingestion of fish and potential ingestion of drinking water. DRAS also considers potential releases of waste particles and volatile emissions to air from the surface of an open landfill. For a potential release to air, the EPA considered potential risks from inhalation of particulates and absorption into the lungs, ingestion of particulates eliminated from respiratory passages and subsequently swallowed, air deposition of particulates and subsequent ingestion of the soil/waste mixture, and inhalation of volatile constituents.

In the DRAS model, the EPA used the maximum estimated waste volume and the maximum reported total and leachate concentration as inputs to estimate the potential constituent concentrations in the groundwater, soil, surface water or air. The DRAS program back calculated a maximum allowable concentration level that would not exceed protective levels in both the waste and the leachate for each constituent at the annual waste volume of 3,000 cubic yards.

B. What Did the EPA Conclude About This Waste?

After reviewing Saturn's manufacturing and wastewater treatment processes, the EPA concluded that no other hazardous constituents of concern, other than those for which the testing was performed, are likely to be present or formed as reaction products or by-products in Saturn's WWTP sludge. EPA also concluded on the basis of explanations and analytical data provided by Saturn pursuant to 40 CFR 260.22, that the WWTP sludge does not exhibit the characteristics of ignitability, corrosivity, or reactivity (see 40 CFR 261.21, 261.22 and 261.23, respectively.)

The EPA compared the analytical results submitted by Saturn to the maximum allowable levels calculated by the DRAS for an annual volume of 3,000 cubic yards. The maximum allowable levels for constituents detected in the WWTP sludge or the leachate from the sludge are summarized in Table 1, above. All constituents of concern were within levels. Table 1 also includes the maximum allowable levels in groundwater at a potential receptor well, as evaluated by the DRAS. These levels are the more conservative of either the Safety Drinking Water Act Maximum Contaminant Level (MCL) or the health-based value calculated by DRAS based on the target cancer risk level of 10⁻⁶. For arsenic, the target cancer risk was set at 10⁻⁴ in consideration of the MCL and the potential for natural occurrence. The maximum allowable groundwater concentration and delisting level for arsenic correspond to a drinking water concentration less than one half the current MCL of 10 μg/l.

EPA also used the DRAS program to estimate the aggregate cancer risk and hazard index of constituents detected in the waste. The aggregate cancer risk is the cumulative total of all individual constituent cancer risks. The hazard index is a similar cumulative total of non-cancer effects. The target aggregate cancer risk is 1 × 10⁻⁵ and the target hazard index is one. The Saturn WWTP sludge met both of these criteria.

C. What Other Factors Did the EPA Consider in Its Evaluation?

During the evaluation of this petition, the EPA also considered the potential impact of the hazardous constituents from WWTP sludge via non-groundwater routes (i.e., air emissions and surface runoff).

In regard to potential airborne emissions, the EPA evaluated the potential risk resulting from the unlikely scenario of airborne exposure to hazardous constituents released from the WWTP sludge in an open landfill. The results of this unlikely worst-case analysis indicated that there is no substantial present or potential hazard to human health and the environment from airborne emissions from the WWTP sludge.

The EPA also considered the potential impact of releases of hazardous constituents from the WWTP sludge via surface water runoff. The EPA believes that containment structures at municipal solid waste landfills can effectively control surface water runoff, as the Subtitle D regulations (see 56 FR 50978, October 9, 1991) prohibit pollutant discharges into surface waters. Furthermore, and in the unlikely event of surface water runoff at municipal solid waste landfills, the concentrations of any soluble hazardous constituents in runoff will tend to be lower than the levels in the TCLP leachate analyses reported in this proposal due to the aggressive acidic medium used in the TCLP extraction. For these reasons, the EPA believes that contamination of surface water through runoff from the waste disposal area is very unlikely. Nevertheless, the EPA evaluated the potential impacts on surface water if the dewatered WWTP sludge was released from a municipal solid waste landfill through runoff and erosion. The estimated levels of the hazardous constituents of concern in surface water would be well below health-based levels for human health, as well as below the EPA Chronic Water Quality Criteria for aquatic organisms (US EPA, OWRS, 1987).

The EPA concluded that the WWTP sludge is not a present or potential hazard to human health and the environment from airborne emissions and surface water runoff.

IV. Proposal To Delist WWTP Sludge From Saturn's Automobile Assembly Facility

A. What Action Is EPA Proposing?

Today the EPA is proposing to conditionally exclude or delist 3,000 cubic yards annually of WWTP sludge generated at Saturn's Spring Hill, Tennessee, automotive assembly facility.

B. What Are the Terms for Disposal of Saturn's WWTP Sludge Pursuant to This Exclusion?

Saturn must dispose of the WWTP sludge in a lined Subtitle D landfill which is permitted, licensed, or registered by a state to manage industrial waste. This exclusion applies only to a maximum annual volume of 3,000 cubic yards and is effective only if all conditions contained in this rule are satisfied.

C. With What Conditions Must Saturn Comply for Its WWTP Sludge To Be Delisted?

The petitioner, Saturn, must comply with the requirements in 40 CFR part 261, Appendix IX, Table 1 as amended by this proposal. The text below gives the rationale and details of those requirements.

(1) Delisting Levels:

Saturn must sample and analyze the dewatered WWTP sludge in accordance with Paragraph (3) and 40 CFR part 261, Appendix IX, Table 1 to ensure that the criteria for delisting continues to be met. The constituents for which Saturn must test the leachate from the dewatered WWTP sludge are provided in Paragraph (7) and in 40 CFR part 261, Appendix IX, Table 1. The EPA selected the constituents based upon the descriptions of the manufacturing process used by Saturn, previous test data provided for the waste, and the respective health-based levels used in delisting decision-making.

To meet the conditions of this delisting, the constituent concentrations in the leachate from the dewatered WWTP sludge must not exceed the concentrations provided in Paragraph (7) and in 40 CFR part 261, Appendix IX, Table 1. The delisting levels represent the maximum allowable concentrations in the leachate from the testing of the WWTP sludge.

(2) Waste Holding and Handling:

Saturn will manage accumulated WWTP sludge in accordance with the applicable regulations and continue to dispose of the WWTP sludge as a hazardous waste until the first quarterly verification testing has been completed. If the results of the first quarterly test indicate that no constituent is present in the sludge at a concentration that exceeds the delisting level, Saturn can manage and dispose of the sludge as a nonhazardous waste. Holding the dewatered WWTP sludge until characterization is complete will ensure that the waste is managed properly.

(3) Verification Testing Requirements:

Saturn must complete a testing program to verify that the dewatered WWTP sludge does not exceed the maximum delisting levels. If the EPA determines that the data from the verification testing program exceeds the maximum delisting levels, this exclusion does not apply to the tested waste. The verification testing program operates on a quarterly basis for one year, followed by testing on an annual basis.

The first part of the verification testing program consists of testing the dewatered WWTP sludge for the constituents specified in Paragraph (7) on a quarterly basis for a period of one year. The quarterly testing will be performed by collecting and analyzing one composite sample on a quarterly basis for one year. Each composite sample will consist of four (4) grab samples collected from an individual roll-off container. The first sample can be collected at any time after EPA has finalized this rule. The remaining three quarterly samples will be collected at approximately ninety (90)-day intervals from the collection of the first quarterly sample.

The second part of the verification testing program is the annual testing of one composite sample (consisting of four grab samples from one roll-off container) of dewatered WWTP sludge for the constituents specified in Paragraph (7). The annual tests will be performed by collecting a composite sample during the same month as the final quarterly (first annual) sample was collected.

If the constituent concentrations in the dewatered WWTP sludge in any roll-off container exceed the delisting levels, then Saturn must dispose of the waste as hazardous. Saturn must submit the data obtained from its quarterly and annual verification testing to EPA. If the data exceeds the delisting criteria, then Saturn must notify the EPA according to the requirements in Paragraph (6). After notification, EPA will make a decision as to whether the reported information requires further EPA action to protect human health and the environment.

This exclusion is effective upon publication in the Federal Register but disposal of the WWTP sludge as a nonhazardous waste cannot begin until the first quarterly verification testing has been completed and the data has been submitted to EPA. If the quarterly or annual verification testing is not performed, the dewatered WWTP sludge cannot be disposed as a delisted waste until Saturn obtains the written approval of the EPA.

(4) Changes in Operating Conditions:

Paragraph (4) requires Saturn to notify EPA in writing if the manufacturing process, the wastewater treatment process, or the chemicals used in the processes significantly change, including but not limited to the type, composition, and amount of waste generated. If there is a significant change, Saturn must handle the WWTP sludge after the process change as hazardous until Saturn has demonstrated to the EPA that the waste continues to meet the delisting levels and that no new hazardous constituents listed in Appendix VIII of 40 CFR part 261 have been introduced and Saturn has received written approval from the EPA.

(5) Data Submittals:

As indicated in Paragraph (3) above, Saturn is required to submit the data obtained from its quarterly and annual verification testing to the EPA. To document that Saturn is appropriately managing the dewatered WWTP sludge, Saturn must also compile, summarize, and maintain delisting records and analytical data on-site for a minimum period of five years. Paragraph (5) requires Saturn to furnish the data upon request for inspection by any employee or representative of the EPA or the State of Tennessee.

If the proposed exclusion is made final, then it will apply only to 3,000 cubic yards per calendar year of dewatered WWTP sludge generated at the Saturn facility after the first successful quarterly verification test.

(6) Reopener:

The purpose of Paragraph (6) is to require Saturn to disclose new or different information related to a condition at the facility or disposal of the waste if it is pertinent to the delisting. Saturn must also use this procedure if the waste sample in the annual testing fails to meet the levels found in Paragraph (1). This provision will allow the EPA to reevaluate the exclusion if a source provides new or additional information to the EPA. The EPA will evaluate the information on which it based the decision to see if it is still correct, or if circumstances have changed so that the information is no longer correct or would cause the EPA to deny the petition if presented.

This provision expressly requires Saturn to report differing site conditions or assumptions used in the petition in addition to failure to meet the annual testing conditions within ten (10) days of discovery. If the EPA discovers such information itself or from a third party, it can act on it as appropriate. The language being proposed is similar to those provisions found in RCRA regulations governing no-migration petitions at § 268.6.

(7) Notification Requirements:

In order to adequately track wastes that have been delisted, the EPA is requiring that Saturn provide a one-time notification to any State regulatory agency through which or to which the delisted waste is being carried. Saturn must provide this notification within sixty (60) days of commencing this activity.

D. What Are the Maximum Allowable Concentrations of Hazardous Constituents in the Waste?

Concentrations of the following constituents measured in the TCLP (or OWEP, where appropriate) extract of the waste must not exceed the following levels (mg/l): antimony—0.494; arsenic—0.224; total chromium—3.71; lead—5.0; nickel—67.8; thallium—0.211; and zinc—673.

E. What Happens if Saturn Is Unable To Meet the Terms and Conditions of This Delisting?

If Saturn violates the terms and conditions established in the exclusion, the EPA will initiate procedures to withdraw the exclusion. Where there is an immediate threat to human health and the environment, the EPA will evaluate the need for enforcement activities on a case-by-case basis. The EPA expects Saturn to conduct the appropriate waste analysis and comply with the criteria explained above in Paragraph (1) of the exclusion.

V. Public Comments

A. How May Interested Parties Submit Comments?

The EPA is requesting public comments on this proposed decision. Please send three copies of your comments. You should send two copies to the Chief, North Section, RCRA Enforcement and Compliance Branch, Waste Division, U.S. Environmental Protection Agency Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street S.W., Atlanta, Georgia 30303. You should also send a copy to Mr. Mike Apple, Director, Division of Solid Waste Management, Tennessee Department of Environment and Conservation, 5th Floor, L&C Tower, 401 Church Street, Nashville, Tennessee 37243-1535. You should identify your comments at the top with this regulatory docket number: R4DLP-0502-Saturn. You may submit your comments electronically to Kristin Lippert at [e-mail].

You should submit requests for a hearing to Narindar M. Kumar, Chief, RCRA Enforcement and Compliance Branch, Waste Division, U. S. Environmental Protection Agency Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street S.W., Atlanta, Georgia 30303.

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

You may review the RCRA regulatory docket for this proposed rule at the U. S. Environmental Protection Agency Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street S.W., Atlanta, Georgia 30303. It is available for viewing in the EPA Freedom of Information Act Review Room from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. You may call [phone] for appointments. The public may copy material from any regulatory docket at no cost for the first one hundred (100) pages, and at fifteen (15) cents per page for additional copies.

VI. Regulatory Impact

Because EPA is issuing today's exclusion under the federal RCRA delisting program, only states subject to federal RCRA delisting provisions would be affected. This exclusion may not be effective in states that have received EPA's authorization to make their own delisting decisions.

Under Section 3009 of RCRA, EPA allows states to impose their own non-RCRA regulatory requirements that are more stringent than EPA's. These more stringent requirements may include a provision that prohibits a federally issued exclusion from taking effect in the state. The EPA urges petitioners to contact the state regulatory authority to establish the status of their wastes under the state law.

The EPA has also authorized some states to administer a delisting program in place of the federal program, that is, to make state delisting decisions. Therefore, this exclusion does not apply in those authorized states. If Saturn manages the WWTP sludge in any state with delisting authorization, Saturn must obtain delisting authorization from the state before it can manage the WWTP sludge as nonhazardous in that state.

Under Executive Order 12866, the EPA must conduct an “assessment of the potential costs and benefits' for all “significant” regulatory actions. The proposal to grant an exclusion is not significant, since its effect, if promulgated, would be to reduce the overall costs and economic impact of the EPA's hazardous waste management regulations. This reduction would be achieved by excluding waste generated at a specific facility from the EPA's lists of hazardous wastes, thus enabling a facility to manage its waste as nonhazardous.

Because there is no additional impact from this proposed rule, this proposal would not be a significant regulation, and no cost/benefit assessment is required. The Office of Management and Budget (OMB) has also exempted this rule from the requirement for OMB review under Section (6) of Executive Order 12866.

VII. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. Sections 601-612, whenever an agency is required to publish a general notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis which describes the impact of the rule on small entities (that is, small businesses, small organizations, and small governmental jurisdictions). No regulatory flexibility analysis is required, however, if the Administrator or delegated representative certifies that the rule will not have any impact on small entities.

This rule, if promulgated, will not have an adverse economic impact on small entities since its effect would be to reduce the overall costs of the EPA's hazardous waste regulations and would be limited to one facility. Accordingly, the EPA hereby certifies that this proposed regulation, if promulgated, will not have a significant economic impact on a substantial number of small entities. This regulation, therefore, does not require a regulatory flexibility analysis.

VIII. 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 (Pub. L. 96-511, 44 U.S.C. 3501 et seq.) and have been assigned OMB Control Number 2050-0053.

IX. Unfunded Mandates Reform Act

Under section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, which was signed into law on March 22, 1995, the EPA generally must prepare a written statement for rules with Federal mandates that may result in estimated costs to State, local, and tribal governments in the aggregate, or to the private sector, of $100 million or more in any one year.

When such a statement is required for the EPA rules, under section 205 of the UMRA the EPA must identify and consider alternatives, including the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The EPA must select that alternative, unless the Administrator explains in the final rule why it was not selected or it is inconsistent with law.

Before the EPA establishes regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, the EPA 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 the EPA's regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising them on compliance with the regulatory requirements.

The UMRA generally defines a Federal mandate for regulatory purposes as one that imposes an enforceable duty upon state, local, or tribal governments or the private sector.

The EPA finds that this delisting decision is deregulatory in nature and does not impose any enforceable duty on any State, local, or tribal governments or the private sector. In addition, the proposed delisting decision does not establish any regulatory requirements for small governments and so does not require a small government agency plan under UMRA section 203.

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 the EPA determines (1) is economically significant as defined under Executive Order 12866, and (2) the environmental health or safety risk addressed by the rule has a disproportionate effect on children. If the regulatory action meets both criteria, the EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the EPA. This proposed rule is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866.

XI. Executive Order 13084

Under Executive Order 13084, the EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments.

If the mandate is unfunded, the EPA must provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of the EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation.

In addition, Executive Order 13084 requires the EPA to develop an effective process permitting elected and other representatives of Indian tribal governments to have “meaningful and timely input” in the development of regulatory policies on matters that significantly or uniquely affect their communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

XII. National Technology Transfer and Advancement Act

Under section 12(d) of the National Technology Transfer and Advancement Act, the EPA is directed to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (for example, materials specifications, test methods, sampling procedures, business practices, etc.) developed or adopted by voluntary consensus standard bodies. Where available and potentially applicable voluntary consensus standards are not used by the EPA, the Act requires that the EPA provide Congress, through the OMB, an explanation of the reasons for not using such standards.

This rule does not establish any new technical standards and thus, the EPA has no need to consider the use of voluntary consensus standards in developing this final rule.

XIII. Executive Order 13132 Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) requires the EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Under section 6 of Executive Order 13132, the EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the EPA consults with State and local officials early in the process of developing the proposed regulation. The EPA also may not issue a regulation that has federalism implications and that preempts State law unless the EPA consults with State and local officials early in the process of developing the proposed regulation.

This action does not have federalism implications. 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, and Reporting and recordkeeping requirements

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

Dated: August 15, 2005.

Alan Farmer,

Acting Director, Waste Management Division, Region 4.

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 of Part 261, the following waste is added in alphabetical order by facility to read as follows:

Appendix IX to Part 261—Waste Excluded Under §§ 260.20 and 260.22

Table 1.—Wastes Excluded From Non-Specific Sources

Facility	Address	Waste description
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Saturn Corporation	Spring Hill, TN	Dewatered wastewater treatment plant (WWTP) sludge (EPA Hazardous Waste No. F019) generated at a maximum rate of 3,000 cubic yards per calendar year. The sludge must be disposed in a lined, Subtitle D landfill with leachate collection that is licensed, permitted, or otherwise authorized to accept the delisted WWTP sludge in accordance with 40 CFR part 258. The exclusion becomes effective on [insert publication date of the final rule].
		For the exclusion to be valid, Saturn must implement a verification testing program that meets the following conditions:
		(1) Delisting Levels: The constituent concentrations in an extract of the waste must not exceed the following maximum allowable concentrations in mg/l: antimony—0.494; arsenic—0.224; total chromium—3.71; lead—5.0; nickel—68; thallium—0.211; and zinc—673. Sample collection and analyses, including quality control procedures, must be performed using appropriate methods. As applicable to the method-defined parameters of concern, analyses requiring the use of SW-846 methods incorporated by reference in 40 CFR 260.11 must be used without substitution. As applicable, the SW-846 methods might include Methods 0010, 0011, 0020, 0023A, 0030, 0031, 0040, 0050, 0051, 0060, 0061, 1010A, 1020B, 1110A, 1310B, 1311, 1312, 1320, 1330A, 9010C, 9012B, 9040C, 9045D, 9060A, 9070A, (uses EPA Method 1664, Rev. A), 9071B, and 9095B. Methods must meet Performance Based Measurement System Criteria in which the Data Quality Objectives are to demonstrate that representative samples of Saturn's sludge meet the delisting levels in this condition.
		(2) Waste Holding and Handling:
		(A) Saturn must accumulate the hazardous waste dewatered WWTP sludge in accordance with the applicable regulations of 40 CFR 262.34 and continue to dispose of the dewatered WWTP sludge as hazardous waste.
		(B) After the first quarterly verification sampling event described in Condition (3) has been completed and the laboratory data demonstrates that no constituent is present in the sample at a level which exceeds the delisting levels set in Condition (1), Saturn can manage and dispose of the dewatered WWTP sludge as nonhazardous according to all applicable solid waste regulations.
		(C) If constituent levels in any sample taken by Saturn exceed any of the delisting levels set in Condition (1), Saturn must do the following:
		(i) notify EPA in accordance with Condition (6) and
		(ii) manage and dispose the dewatered WWTP sludge as hazardous waste generated under Subtitle C of RCRA.
		(3) Quarterly Testing Requirements: Upon this exclusion becoming final, Saturn may perform quarterly analytical testing by sampling and analyzing the dewatered WWTP sludge as follows:
		(i) Collect one representative composite sample (consisting of four grab samples) of the hazardous waste dewatered WWTP sludge at any time after EPA grants the final delisting. In addition, collect the second, third, and fourth quarterly samples at approximately ninety (90)-day intervals after EPA grants the final exclusion.
		(ii) Analyze the samples for all constituents listed in Condition (1). Any roll-offs from which the composite sample is taken exceeding the delisting levels listed in Condition (1) must be disposed as hazardous waste in a Subtitle C landfill. (iii) Within forty-five (45) days after taking its first quarterly sample, Saturn will report its first quarterly analytical test data to EPA. If levels of constituents measured in the sample of the dewatered WWTP sludge do not exceed the levels set forth in Condition (1) of this exclusion, Saturn can manage and dispose the nonhazardous dewatered WWTP sludge according to all applicable solid waste regulations.
		(4) Annual Verification Testing: (i) If Saturn completes the quarterly testing specified in Condition (3) above, and no sample contains a constituent with a level which exceeds the limits set forth in Condition (1), Saturn may begin annual verification testing on an annual basis. Saturn must collect and analyze one sample of the WWTP sludge on an annual basis. as follows: Saturn must test one representative composite sample of the dewatered WWTP sludge for all constituents listed in Condition (1) at least once per calendar year.
		(ii) The sample collected for annual verification testing shall be a representative composite sample consisting of four grab samples that will be collected in accordance with the appropriate methods described in Condition (1).
		(iii) The sample for the annual testing for the second and subsequent annual testing events shall be collected within the same calendar month as the first annual verification sample.
		(5) Changes in Operating Conditions: Saturn 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 Saturn in writing that Saturn's sludge must be managed as hazardous waste F019 until Saturn 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 Saturn has received written approval from EPA. If EPA determines that the changes do not result in additional constituents of concern, EPA will notify Saturn, in writing, that Saturn must verify that Saturn's sludge continues to meet Condition (1) delisting levels.
		(6) Data Submittals: Saturn must submit the data obtained through verification testing at Saturn or as required by other conditions of this rule to: information described below. If Saturn fails to submit the required data within the specified time or maintain the required records on-site for the specified time, the EPA, at its discretion, will consider this sufficient basis to re-open the exclusion as described in Condition (6). Saturn must:
		(A) Submit the data obtained through Condition (3) to the Chief, North Section, RCRA Enforcement and Compliance Branch, Waste Division, U.S. Environmental Protection Agency Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street S.W., Atlanta, Georgia, 30303, within the time specified. The quarterly verification data, annual verification data, and certification of proper disposal must be submitted to EPA annually upon the anniversary of the effective date of this exclusion. All data must be accompanied by a signed copy of the certification statement in 40 CFR 260.22(i)(12).
		(B) Compile, Summarize, and Maintain Records: Saturn must compile, summarize, and maintain at Saturn records of operating conditions and analytical data records of analytical data from Condition (3), summarized, and maintained on-site for a minimum of five years. Saturn must furnish these records and data when either the EPA or the State of Tennessee request them for inspection.
		(C) Send along with all data a signed copy of the following certification statement, to attest to the truth and accuracy of the data submitted: “I certify under penalty of law that I have personally examined and am familiar with the information submitted in this demonstration and all attached documents, and that, based on my inquiry of those individuals immediately responsible for getting the information, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for sending false information, including the possibility of fine and imprisonment.”
		(6) Reopener.
		(A) If, at any time after disposal of the delisted waste, Saturn possesses or is otherwise made aware of any data (including but not limited to leachate data or groundwater monitoring data) relevant to the delisted WWTP sludge at Saturn indicating that any constituent is at a level in the leachate higher than the specified delisting level or TCLP regulatory level, then Saturn must report the data, in writing, to the Regional Administrator within ten (10) days of first possessing or being made aware of that data.
		(B) Based upon the information described in Paragraph (A) and any other information received from any source, the EPA Regional Administrator will make a preliminary determination as to whether the reported information requires EPA action to protect human health or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate response necessary to protect human health and the environment.
		(C) If the Regional Administrator determines that the reported information does require EPA action, the Regional Administrator will notify Saturn in writing of the actions the Regional Administrator believes are necessary to protect human health and the environment. The notification shall include a statement of the proposed action and a statement providing Saturn with an opportunity to present information as to why the proposed EPA action is not necessary. Saturn shall have ten (10) days from the date of the Regional Administrator's notice to present the information.
		(D) Following the receipt of information from Saturn, or if Saturn presents no further information after 10 days, the Regional Administrator will issue a final written determination describing the EPA actions that are necessary to protect human health or the environment. Any required action described in the Regional Administrator's determination shall become effective immediately, unless the Regional Administrator provides otherwise.
		(7) Notification Requirements: Before transporting the delisted waste, Saturn must provide a one-time written notification to any State Regulatory Agency to which or through which it will transport the delisted WWTP sludge for disposal. The notification will be updated if Saturn transports the delisted WWTP sludge to a different disposal facility. Failure to provide this notification will result in a violation of the delisting variance and a possible revocation of the decision.
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