06-1790. Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Final Amendment

AGENCY:

Environmental Protection Agency.

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA, also the Agency or we in this preamble) today is granting a petition to modify an exclusion (or delisting) from the lists of hazardous waste previously granted to Nissan North America, Inc. (Nissan) in Smyrna, Tennessee. This action responds to a petition for amendment submitted by Nissan to increase the maximum annual volume of waste and to eliminate the total concentration limits in its wastewater treatment sludge covered by its current exclusion. After careful analysis, we have concluded the petitioned waste does not present an unacceptable risk when disposed of in a Subtitle D (nonhazardous waste) landfill. This exclusion applies to F019 wastewater treatment sludge generated by Nissan at its facility in Smyrna, Tennessee. Accordingly, this final amendment conditionally excludes a specific yearly volume of the petitioned waste from the requirements of the hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA) when the petitioned waste is disposed of in a Subtitle D landfill which is permitted, licensed, or registered by a State to manage municipal or industrial solid waste.

DATES:

Effective Date: February 27, 2006.

ADDRESSES:

The RCRA regulatory docket for this final amendment is located at the EPA Library, U.S. Environmental Protection Agency Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303, and is available for you to view from 9 a.m. to 4 p.m., Monday through Friday, except on Federal holidays. The public may copy material from the regulatory docket at $0.15 per page.

FOR FURTHER INFORMATION CONTACT:

For general and technical information concerning this final rule, please contact Kris Lippert, RCRA Enforcement and Compliance Branch (Mail Code 4WD-RCRA), U.S. Environmental Protection Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303, [phone], or call, toll free [phone]. Questions may also be e-mailed to Ms. Lippert at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Overview Information

A. What Action Is EPA Finalizing?

B. Why Is EPA Approving this Petition for Amendment?

C. What Are the Terms of this Exclusion?

D. When Is the Final Amendment Effective?

E. How Does this Action Affect States?

II. Background

A. What is a Delisting Petition?

B. What Regulations Allow Hazardous Waste Generators to Delist Waste?

C. What Information Must the Generator Supply?

III. EPA's Evaluation of the Waste Data

A. What Waste Is the Subject of this Amendment?

B. How did EPA Evaluate this Petition?

IV. Public Comments on the Proposed Amendment

A. Who Submitted Comments on the Proposed Rule?

V. Administrative Assessments

I. Overview Information

A. What Action Is EPA Finalizing?

After evaluating Nissan's petition, we are amending the current Nissan's delisting published in the Federal Register on June 21, 2002 (67 FR 42187) to increase the maximum annual waste volume that is covered by its exclusion from 2,400 cubic yards to 3,500 cubic yards and to eliminate the total concentration limits for barium, cadmium, chromium, cyanide, lead, and nickel for its F019 wastewater treatment sludge from the requirements of the hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA). The waste will still be subject to local, State, and Federal regulations for nonhazardous solid wastes.

B. Why Is EPA Approving This Petition for Amendment?

Nissan petitioned EPA to exclude the increased volume of its F019 wastewater treatment sludge because it does not believe, even at the increased volume, that the petitioned waste meets the criteria for which it was listed. EPA is also eliminating the total concentration limits for barium, cadmium, chromium, cyanide, lead, and nickel from its F019 wastewater treatment sludge.

Nissan believes that the waste does not contain any other constituents that would render it hazardous. Review of this petition included consideration of the original listing criteria, as well as factors (including additional constituents) other than those for which the waste was listed, as 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(a)(1) and (2).

For reasons stated in both the proposed amendment and this document, we believe that Nissan's F019 wastewater treatment sludge should continue to be excluded from hazardous waste control at the increased volume. EPA also believes that eliminating all total concentration limits will not harm human health and the environment when disposed in a nonhazardous waste landfill, if the required delisting levels are met. Therefore, we are granting the final amendment to Nissan, located in Smyrna, Tennessee, for its F019 wastewater treatment sludge, generated at a maximum annual volume of 3,500 cubic yards.

C. What Are the Terms of This Exclusion?

This amended exclusion applies to the waste described in the petition only if the requirements described above as well as in Table 1 of Appendix IX to part 261 of Title 40 of the Code of Federal Regulations are satisfied. The maximum annual volume of the wastewater treatment sludge is 3,500 cubic yards.

D. When Is the Final Amendment Effective?

This rule is effective February 27, 2006. HSWA 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 reduces, rather than increases, the existing requirements for persons generating hazardous wastes. For these same reasons, this rule can become effective immediately (that is, upon publication in the Federal Register) under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).

E. How Does This Action Affect States?

Because EPA is issuing today's exclusion under the Federal RCRA delisting program, only States subject to Federal RCRA delisting provisions would be directly affected. This would exclude two categories of States: States having a dual system that includes Federal RCRA requirements and their own requirements, and States who have received EPA's authorization to make their own delisting decisions. We describe these two situations below.

We allow states to impose their own non-RCRA regulatory requirements that are more stringent than EPA's, under section 3009 of RCRA. These more stringent requirements may include a provision that prohibits a Federally issued exclusion from taking effect in the State, or that prohibits a Federally issued exclusion from taking effect in the State until the State approves the exclusion through a separate State administrative action. Because a dual system (that is, both Federal and State programs) may regulate a petitioner's waste, we urge petitioners to contact the applicable State regulatory authorities or agencies to establish the status of their waste under that State's program.

We have 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 necessarily apply within those authorized States. If Nissan transports the petitioned waste to, or manages the waste in, any State with delisting authorization, Nissan must obtain delisting approval from that State before it can manage the waste as nonhazardous in that State.

In order for this amendment to be effective in an authorized State, that State must adopt this amendment through its State administrative process.

II. Background

A. What Is a Delisting Petition?

A delisting petition is a formal request from a generator to EPA or another agency with jurisdiction to exclude from the lists of hazardous waste regulated by RCRA, a waste that the generator believes should not be considered hazardous.

B. What Regulations Allow Hazardous Waste Generators to Delist Waste?

Under 40 CFR 260.20 and 260.22, a generator may petition EPA to remove its waste from hazardous waste control by excluding it from the lists of hazardous wastes contained in 40 CFR 261.31, 261.32 and 261.33. Specifically, 40 CFR 260.20 allows any person to petition the Administrator to modify or revoke any provision of parts 260 through 266, 268 and 273 of Title 40 of the Code of Federal Regulations. 40 CFR 260.22 provides generators the opportunity to petition the Administrator to exclude a waste on a “generator-specific” basis from the hazardous waste lists. A generator can petition EPA for an amendment to an existing exclusion under these same provisions of the Code of Federal Regulations.

C. What Information Must the Generator Supply?

A petitioner must provide sufficient information to allow EPA to determine that the waste to be excluded does not meet any of the criteria under which the waste was listed as a hazardous waste. In addition, the Administrator must determine that the waste is not hazardous for any other reason.

III. EPA's Evaluation of the Waste Data

A. What Waste Is the Subject of This Amendment?

Nissan operates a light-duty vehicle manufacturing facility in Smyrna, Tennessee. As a result of Nissan's use of aluminum as a component in its automobile bodies, Nissan generates a sludge meeting the listing definition of F019 at 40 CFR 261.31. Nissan was granted its current Federal delisting exclusion for this F019 wastewater treatment sludge at a maximum annual volume of 2,400 cubic yards on June 21, 2002 (67 FR 42187).

A full description of this waste and the Agency's evaluation of the original Nissan's petition are contained in the “Proposed Rule and Request for Comments” published in the Federal Register on November 19, 2001 (66 FR 57918). After evaluating public comment on the proposed rule, we published a final decision in the Federal Register on June 21, 2002 (67 FR 42187), to exclude Nissan's wastewater treatment sludge derived from the treatment of EPA Hazardous Waste No. F019 from the list of hazardous wastes found in 40 CFR 261.31. 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 did not believe that the waste meets the criteria of the listing. EPA's final decision to grant the delisting exclusion on June 21, 2002, was conditioned on the following delisting levels: (1) Delisting Levels: All leachable concentrations for these metals, cyanide, and organic constituents must not exceed the following levels (ppm): Barium-100.0; Cadmium-0.422; Chromium-5.0; Cyanide-7.73, Lead-5.0; and Nickel-60.7; Bis-(2-ethylhexyl) phthalate-0.601; Di-n-octyl phthalate-0.0752; and 4-Methylphenol-7.66; (2) the total concentration of cyanide (total, not amenable) in the waste, not the waste leachate, must not exceed 200 mg/kg; and (3) the total concentrations, in mg/kg, of the metals in the waste, not the waste leachate, must not exceed the following levels: Barium-20,000; Cadmium-500; Chromium-1,000; Lead-2,000; and Nickel-20,000. If the waste exceeded any of the delisting limits, then the waste has to be managed as hazardous waste.

B. How Did EPA Evaluate This Petition?

In support of its original 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 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 the 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 the determinations for the hazardous characteristics of ignitability, corrosivity, and reactivity, in these wastes; (7) results of determinations percent solids; and (8) results of a dye tracer study and source inventory of Nissan's industrial wastewater system.

EPA reviewed the allowable total concentrations in the waste, as calculated by DRAS for the waste, to determine if increasing the maximum annual waste volume from 2,400 cubic yards to 3,500 cubic yards would be still protective to human health and the environment. The allowable total concentrations, according to the DRAS, were all at least 1,000 times greater than the actual maximum total concentrations found in the waste. Based on the DRAS results, EPA grants Nissan's petition for amendment to increase the maximum annual waste volume to 3,500 cubic yards and to eliminate all total concentration limits.

IV. Public Comments on the Proposed Amendment

A. Who Submitted Comments on the Proposed Rule?

We received no public comments on Nissan's Proposed Amendment and Request for Comments published in the Federal Register on June 24, 2005 (70 FR 36547).

V. Administrative Assessments

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a rule of general applicability and therefore is not a “regulatory action” subject to review by the Office of Management and Budget. Because this action is a rule of particular applicability relating to a particular facility, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or to sections 202, 203, and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because the rule will affect only one facility, it will not significantly or uniquely affect small governments, as specified in section 203 of UMRA, or communities of Indian tribal governments, as specified in Executive Order 13175 (65 FR 67249, November 6, 2000). For the same reason, this rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This rule does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The Congressional Review Act, 5 U.S.C. 801 et seq. as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties (5 U.S.C. 804(3)). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability.

List of Subjects in 40 CFR Part 261

• Environmental protection
• Hazardous waste
• Recycling
• Reporting and recordkeeping requirements

Dated: December 1, 2005.

Beverly H. Banister,

Acting Director, Waste Management Division.

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

PART 261—IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

2. In Table 1 of Appendix IX, part 261 revise the entry for Nissan North America, Inc., to read as follows:

Appendix IX to Part 261—Wastes Excluded Under Secs. 260.20 and 260.22

Table 1.—Wastes Excluded From Non-Specific Sources

Facility	Address	Waste description
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Nissan North America, Inc.	Smyrna, Tennessee	Wastewater treatment sludge (EPA Hazardous Waste No. F019) that Nissan North American, Inc. (Nissan) generates by treating wastewater from automobile assembly plant located on 983 Nissan Drive in Smyrna, Tennessee. This is a conditional exclusion for up to 3,500 cubic yards of waste (hereinafter referred to as “Nissan Sludge”) that will be generated each year and disposed in a Subtitle D landfill after February 27, 2006. Nissan must continue to demonstrate that the following conditions are met for the exclusion to be valid.
		(1) Delisting Levels: All leachable concentrations for these metals, cyanide, and organic constituents must not exceed the following levels (ppm): Barium-100.0; Cadmium-0.422; Chromium-5.0; Cyanide-7.73, Lead-5.0; and Nickel-60.7; Bis-(2-ethylhexyl) phthalate-0.601; Di-n-octyl phthalate-0.0752; and 4-Methylphenol-7.66. These concentrations must be measured in the waste leachate obtained by the method specified in 40 CFR 261.24, except that for cyanide, deionized water must be the leaching medium. Cyanide concentrations in waste or leachate must be measured by the method specified in 40 CFR 268.40, Note 7.
		(2) Verification Testing Requirements: Sample collection and analyses, including quality control procedures, must be performed 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 the Nissan Sludge meet the delisting levels in Condition (1). Nissan must perform an annual testing program to demonstrate that constituent concentrations measured in the TCLP extract do not exceed the delisting levels established in Condition (1).
		(3) Waste Holding and Handling: Nissan must hold sludge containers utilized for verification sampling until composite sample results are obtained. If the levels of constituents measured in Nissan's annual testing program do not exceed the levels set forth in Condition (1), then the Nissan Sludge is non-hazardous and must be managed in accordance with all applicable solid waste regulations. If constituent levels in a composite sample exceed any of the delisting levels set forth in Condition (1), the batch of Nissan Sludge generated during the time period corresponding to this sample must be managed and disposed of in accordance with Subtitle C of RCRA.
		(4) Changes in Operating Conditions: Nissan must notify EPA in writing when significant changes in the manufacturing or wastewater treatment processes are implemented. EPA will determine whether these changes will result in additional constituents of concern. If so, EPA will notify Nissan in writing that the Nissan Sludge must be managed as hazardous waste F019 until Nissan has demonstrated that the wastes meet the delisting levels set forth in Condition (1) and any levels established by EPA for the additional constituents of concern, and Nissan has received written approval from EPA. If EPA determines that the changes do not result in additional constituents of concern, EPA will notify Nissan, in writing, that Nissan must verify that the Nissan Sludge continues to meet Condition (1) delisting levels.
		(5) Data Submittals: Data obtained in accordance with Condition (2) must be submitted to Narindar M. Kumar, Chief, RCRA Enforcement and Compliance Branch, Mail Code: 4WD-RCRA, U.S. EPA, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303. The submission is due no later than 60 days after taking each annual verification samples in accordance with delisting Conditions (1) through (7). Records of analytical data from Condition (2) must be compiled, summarized, and maintained by Nissan for a minimum of three years, and must be furnished upon request by EPA or the State of Tennessee, and made available for inspection. Failure to submit the required data within the specified time period or maintain the required records for the specified time will be considered by EPA, at its discretion, sufficient basis to revoke the exclusion to the extent directed by EPA. All data must be accompanied by a signed copy of the certification statement in 40 CFR 260.22(i)(12).
		(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 and Tennessee 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), does not meet the delisting requirements of Condition (1), Nissan must report the data, in writing, to EPA and Tennessee within 10 days of first possessing or being made aware of that data. (C) Based on the information described in paragraphs (6)(A) or (6)(B) and any other information received from any source, EPA will make a preliminary determination as to whether the reported information requires that EPA take action to protect human health or the environment. Further action may include suspending or revoking the exclusion, or other appropriate response necessary to protect human health and the environment. (D) If EPA determines that the reported information does require Agency action, EPA will notify the facility in writing of the action believed necessary to protect human health and the environment. The notice shall include a statement of the proposed action and a statement providing Nissan with an opportunity to present information as to why the proposed action is not necessary. Nissan shall have 10 days from the date of EPA's notice to present such information. (E) Following the receipt of information from Nissan, as described in paragraph (6)(D), or if no such information is received within 10 days, EPA will issue a final written determination describing the Agency actions that are necessary to protect human health or the environment, given the information received in accordance with paragraphs (6)(A) or (6)(B). Any required action described in EPA's determination shall become effective immediately, unless EPA provides otherwise.
		(7) Notification Requirements: Nissan must provide a one-time written notification to any State Regulatory Agency in a State to which or through which the delisted waste described above will be transported, at least 60 days prior to the commencement of such activities. Failure to provide such a notification will result in a violation of the delisting conditions and a possible revocation of the decision to delist.
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