[Federal Register Volume 73, Number 185 (Tuesday, September 23, 2008)]
[Proposed Rules]
[Pages 54760-54770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21227]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R06-RCRA-2008-0456; SW FRL-8713-2]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Proposed Exclusion
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule and request for comment.
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SUMMARY: EPA is proposing to grant a petition submitted by BAE Systems,
Inc. (BAE) to exclude (or delist) a certain solid waste generated by
its Sealy, Texas, facility from the lists of hazardous wastes. EPA used
the Delisting Risk Assessment Software (DRAS) Version 3.0 in the
evaluation of the impact of the petitioned waste on human health and
the environment.
DATES: We will accept comments until October 23, 2008. We 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.
Your requests for a hearing must reach EPA by October 8, 2008. The
request must contain the information prescribed in 40 CFR 260.20(d)
(hereinafter all CFR cites refer to 40 CFR unless otherwise stated).
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
RCRA-2008-0456 by one of the following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov: Follow
the on-line instructions for submitting comments.
2. E-mail: [email protected].
3. Mail: Wendy Jacques, Environmental Protection Agency, Multimedia
Planning and Permitting Division, RCRA Branch, Mail Code: 6PD-F, 1445
Ross Avenue, Dallas, TX 75202.
4. Hand Delivery or Courier: Deliver your comments to: Wendy
Jacques, Environmental Protection Agency, Multimedia Planning and
Permitting Division, RCRA Branch, Mail Code: 6PD-F, 1445 Ross Avenue,
Dallas, TX 75202.
Instructions: Direct your comments to Docket ID No. EPA-R06-RCRA-
2008-0456. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment.
[[Page 54761]]
Electronic files should avoid the use of special characters, any form
of encryption, and be free of any defects or viruses.
Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Environmental
Protection Agency, RCRA Branch, 1445 Ross Avenue, Dallas, TX 75202. The
hard copy RCRA regulatory docket for this proposed rule, EPA-R06-RCRA-
2008-0456, is available for viewing from 8 a.m. to 5 p.m., Monday
through Friday, excluding Federal holidays. 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. EPA requests
that you contact the person listed in the FOR FURTHER INFORMATION
CONTACT section to schedule your inspection. The interested persons
wanting to examine these documents should make an appointment with the
office at least 24 hours in advance.
FOR FURTHER INFORMATION CONTACT: For further technical information
concerning this document or for appointments to view the docket or the
BAE facility petition, contact Wendy Jacques, Environmental Protection
Agency, Multimedia Planning and Permitting Division, RCRA Branch, Mail
Code: 6PD-C, 1445 Ross Avenue, Dallas, TX 75202, by calling 214-665-
7395 or by e-mail at [email protected].
SUPPLEMENTARY INFORMATION: BAE submitted a petition under 40 CFR 260.20
and 260.22(a). Section 260.20 allows any person to petition the
Administrator to modify or revoke any provision of Sec. Sec. 260
through 266, 268 and 273. Section 260.22(a) specifically provides
generators the opportunity to petition the Administrator to exclude a
waste on a ``generator specific'' basis from the hazardous waste lists.
The Agency bases its proposed decision to grant the petition on an
evaluation of waste-specific information provided by the petitioner.
This proposed decision, if finalized, would conditionally exclude the
petitioned waste from the requirements of hazardous waste regulations
under the Resource Conservation and Recovery Act (RCRA).
If finalized, we would conclude the petitioned waste from this
facility is non-hazardous with respect to the original listing criteria
and that the waste process used will substantially reduce the
likelihood of migration of hazardous constituents from this waste. We
would also conclude that the processes minimize short-term and long-
term threats from the petitioned waste to human health and the
environment. The information in this section is organized as follows:
I. Overview Information
A. What action is EPA proposing?
B. Why is EPA proposing to approve this delisting?
C. How will BAE manage the waste, if it is delisted?
D. When would the proposed delisting exclusion be finalized?
E. How would this action affect states?
II. Background
A. What is the history of the delisting program?
B. What is a delisting petition, and what does it require of a
petitioner?
C. What factors must EPA consider in deciding whether to grant a
delisting petition?
III. EPA's Evaluation of the Waste Information and Data
A. What waste did BAE petition EPA to delist?
B. Who is BAE and what process do they use to generate the
petitioned waste?
C. What information did BAE submit to support this petition?
D. What were the results of BAE's analysis?
E. How did EPA evaluate the risk of delisting this waste?
F. What changes have been made to the DRAS model?
G. What did EPA conclude about BAE's analysis?
H. What other factors did EPA consider in its evaluation?
I. What is EPA's evaluation of this delisting petition?
IV. Next Steps
A. With what conditions must the petitioner comply?
B. What happens if BAE violates the terms and conditions?
V. Public Comments
A. How may I as an interested party submit comments?
B. How may I review the docket or obtain copies of the proposed
exclusion?
VI. Statutory and Executive Order Reviews
I. Overview Information
A. What action is EPA proposing?
EPA is proposing to grant the delisting petition submitted by BAE
to have its waste filter cake (F019 listed hazardous waste) excluded,
or delisted, from the definition of a hazardous waste.
B. Why is EPA proposing to approve this delisting?
BAE's petition requests a delisting for the waste filter cake
derived from the treatment of hazardous waste water listed as F019. BAE
does not believe that the petitioned waste meets the criteria for which
EPA listed it. BAE also believes no additional constituents or factors
could cause the waste to be hazardous. EPA's review of this petition
included consideration of the original listing criteria, and the
additional factors required by the Hazardous and Solid Waste Amendments
of 1984 (HSWA). See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40
CFR 260.22(d)(1)-(4). In making the initial delisting determination,
EPA evaluated the petitioned waste against the listing criteria and
factors cited in Sec. Sec. 261.11(a)(2) and (a)(3). Based on this
review, EPA agrees with the petitioner that the waste is non-hazardous
with respect to the original listing criteria. If EPA had found, based
on this review, that the waste remained hazardous based on the factors
for which the waste was originally listed, EPA would have proposed to
deny the petition. EPA evaluated the waste with respect to other
factors or criteria to assess whether there is a reasonable basis to
believe that such additional factors could cause the waste to be
hazardous. EPA considered whether the waste is acutely toxic, 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. EPA believes that the petitioned waste does not meet the
listing criteria and thus should not be a listed waste. EPA's proposed
decision to delist waste from the facility is based on the information
submitted in support of this rule, including descriptions of the waste
and analytical data from the BAE, Sealy, Texas facility.
C. How will BAE manage the waste, if it is delisted?
BAE will dispose of the waste filter cake in a Subtitle D landfill.
The Subtitle D landfill should be permitted or approved by a State
regulatory agency.
D. When would the proposed delisting exclusion be finalized?
RCRA section 3001(f) specifically requires EPA to provide notice
and an opportunity for comment before granting or denying a final
exclusion.
[[Page 54762]]
Thus, EPA will not grant the exclusion unless and until it addresses
all timely public comments (including those at public hearings, if any)
on this proposal.
RCRA section 3010(b)(1), at 42 USCA 6930(b)(1), allows rules to
become effective in less than six months after EPA addresses public
comments when the regulated facility 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 persons
generating hazardous wastes.
EPA believes that this exclusion should be effective immediately
upon final publication because a six-month deadline is not necessary to
achieve the purpose of section 3010(b), and a later effective date
would impose unnecessary hardship and expense on this petitioner. These
reasons also provide good cause for making this rule effective
immediately, upon final publication, under the Administrative Procedure
Act, 5 U.S.C. 553(d).
E. How would this action affect the states?
Because EPA is issuing this exclusion under the Federal RCRA
delisting program, only states subject to Federal RCRA delisting
provisions would be affected. This would exclude states which have
received authorization from EPA to make their own delisting decisions
(e.g., Oklahoma, Louisiana, etc.).
EPA allows the states to impose their own non-RCRA regulatory
requirements that are more stringent than EPA's, under section 3009 of
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a
provision that prohibits a Federally issued exclusion from taking
effect in the state. Because a dual system (that is, both Federal
(RCRA) and state (non-RCRA) programs) may regulate a petitioner's
waste, EPA urges petitioners to contact the state regulatory authority
to establish the status of their wastes under the state law. Delisting
petitions approved by EPA Administrator or his designee under Sec.
260.22 are effective in the State of Texas only after the final rule
has been published in the Federal Register.
II. Background
A. What is the history of the delisting program?
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. EPA has
amended this list several times and published it in Sec. Sec. 261.31
and 261.32. EPA lists these wastes 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 (that is,
ignitability, corrosivity, reactivity, and toxicity) or (2) they meet
the criteria for listing contained in Sec. 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
described in these regulations generally is hazardous, a specific waste
from an individual facility meeting the listing description may not be
hazardous.
For this reason, Sec. Sec. 260.20 and 260.22 provide an exclusion
procedure, called delisting, which allows persons to prove that 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 EPA or an
authorized State to exclude wastes from the list of hazardous wastes.
The facility petitions EPA because it does not believe the wastes
should be hazardous under RCRA regulations.
In a delisting petition, the petitioner must show that wastes
generated at a particular facility do not meet any of the criteria for
which the waste was listed. The criteria for which EPA lists a waste
are in part 261 and further explained in the background documents for
the listed waste.
In addition, under Sec. 260.22, a petitioner must prove that the
waste does not exhibit any of the hazardous waste characteristics and
present sufficient information for EPA to decide whether factors other
than those for which the waste was listed warrant retaining it as a
hazardous waste. See part 261 and the background documents for the
listed waste.
Generators remain obligated under RCRA to confirm whether their
waste remains non-hazardous based on the hazardous waste
characteristics even if EPA has ``delisted'' the waste.
C. What factors must EPA consider in deciding whether to grant a
delisting petition?
Besides considering the criteria in Sec. 260.22(a) and section
3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for
the listed wastes, EPA must consider any factors (including additional
constituents) other than those for which EPA listed the waste, if a
reasonable basis exists to determine that these additional factors
could cause the waste to be hazardous.
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 Sec. Sec. 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).
III. EPA's Evaluation of the Waste Information and Data
A. What waste did BAE petition EPA to delist?
BAE petitioned EPA on December 23, 2005, to exclude from the lists
of hazardous waste contained in Sec. 261.31, the waste filter cake
from its waste water treatment plant.
The waste filter cake is generated from the BAE facility located in
Sealy, Texas. The waste filter cake is listed under EPA Hazardous Waste
No. F019, because it is derived from the chemical conversion coating of
aluminum except from zirconium phosphating in aluminum can washing when
such phosphating is an exclusive conversion coating process.
Specifically, in its petition, BAE requested that EPA grant exclusion
for 1,200 cubic yards per calendar year of F019 waste resulting from
the treatment of waste waters from the manufacturing processes at its
facility.
B. Who is BAE and what process do they use to generate the petitioned
waste?
BAE manufactures trucks for the U.S. Army. Manufacturing consists
of machining, cutting, welding, metal prep and priming, painting,
assembly and final prep. Wastewater is treated and discharged to waters
of the United States through permitted outfalls.
BAE's preprocess steps include fabrication and surface preparation
and coating. The waste stream is a by-product of one main manufacturing
process consisting of five process lines; Steel E-Coat (E-Coat 1 and E-
Coat 2), Small Parts Steel E-Coat, Long-Term Armored Survivability
(LTAS) and Small Parts Aluminum E-Coat. The waste generated is a solid
by-product of BAE's wastewater treatment system.
BAE intends to dispose of the delisted waste filter cake at a
Subtitle D Landfill. Treatment of the waste waters, which result from
the manufacturing process generates the waste filter cake that is
classified as F019 listed hazardous wastes pursuant to Sec. 261.31.
The 40 CFR
[[Page 54763]]
part 261, Appendix VII hazardous constituents, which are the basis for
listing F019 hazardous wastes are: hexavalent chromium and cyanide.
C. What information did BAE submit to support this petition?
To support its petition, BAE submitted:
(1) Analytical results of the toxicity characteristic leaching
procedure and total constituent analysis for volatile and semivolatile
organics, pesticides, herbicides, dioxins/furans, PCBs and metals for
seven filter cake samples;
(2) Analytical results from multiple pH leaching of metals; and
(3) Description of the waste water treatment process.
D. What were the results of BAE's analysis?
EPA believes that the descriptions of BAE's waste, and the
analytical data submitted in support of the petition show that the
filter cake is non-hazardous. Analytical data from BAE's filter cake
samples were used in the DRAS program. The data summaries for detected
constituents are presented in Table 1. EPA has reviewed the sampling
procedures used by BAE and has determined that they satisfy EPA's
criteria for collecting representative samples of the variations in
constituent concentrations in the filter cake. The data submitted in
support of the petition show that constituents in BAE's wastes are
presently below health-based risk levels used in the delisting
decision-making. EPA believes that BAE has successfully demonstrated
that the filter cake is non-hazardous.
Table 1--Analytical Results and Maximum Allowable Delisting Concentrations of the Filter Cake \1\
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Maximum
Maximum total Maximum TCLP allowable TCLP
Constituent (mg/kg) (mg/l) delisting
level (mg/L)
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Acetone......................................................... 3.8 <.50 3211
Arsenic......................................................... 2.69 .0108 .052
Barium.......................................................... 47.5 .0148 100
Bis(2-ethylhexyl)phthalate...................................... 2.3 .010 103
Cadmium......................................................... 2.93 .0500 .561
Chloroform...................................................... .013 <.010 .4924
Chromium........................................................ 2740 1.82 5.00
Copper.......................................................... 99.2 .371 149
Cyanide......................................................... 2.06 .065 19
Furans.......................................................... .00000893 .0000000536 3.57
Hexavalent Chromium............................................. <2.00 .0253 5
Lead............................................................ 21.2 <.0500 3.57
Lindane......................................................... <.0017 .00011 .4
Methyl Ethyl Ketone............................................. .034 <.20 200
Nickel.......................................................... 6860 .0235 82.2
Selenium........................................................ <.806 .144 1
2,4,5,-TP (Silvex).............................................. .77 .0061 1
2,4-D........................................................... .0050 .0078 6.65
Tin............................................................. 319 .162 9001
Tetrachlorodibenzo-p-dioxins.................................... .0000716 .0000000134 249
Tetrachloroethylene............................................. .020 <.10 .125685
Zinc............................................................ 3190 .81 1240
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\1\ These levels represent the highest concentration of each constituent found in any one sample. These levels
do not necessarily represent the specific levels found in one sample.
< Denotes that the constituent was below the detection limit.
E. How did EPA evaluate the risk of delisting this waste?
The worst case scenario for management of the sludge was modeled
for disposal in a landfill. EPA used such information gathered to
identify plausible exposure routes (i.e., ground water, surface water,
soil, air) for hazardous constituents present in the sludge. EPA
determined that disposal in a Subtitle D landfill is the most
reasonable, worst-case disposal scenario for the wastes. In assessing
potential risks to ground water, EPA used the maximum estimated waste
volumes and the maximum reported extract concentrations as inputs to
the DRAS program to estimate the constituent concentrations in the
ground water at a hypothetical receptor well down gradient from the
disposal site. Using the risk level (carcinogenic risk of
10-5 and non-cancer hazard index of 0.1), the DRAS program
can back-calculate the acceptable receptor well concentrations
(referred to as compliance-point concentrations) using standard risk
assessment algorithms and Agency health-based numbers. Using the
maximum compliance-point concentrations and EPA Composite Model for
Leachate Migration with Transformation Products (EPACMTP) fate and
transport modeling factors, the DRAS further back-calculates the
maximum permissible waste constituent concentrations not expected to
exceed the compliance-point concentrations in ground water.
EPA believes that the EPACMTP fate and transport model represents a
reasonable worst-case scenario for possible ground water contamination
resulting from disposal of the petitioned waste in a landfill, and that
a reasonable worst-case scenario is appropriate when evaluating whether
a waste should be relieved of the protective management constraints of
RCRA Subtitle C. The use of some reasonable worst-case scenarios
resulted in conservative values for the compliance-point concentrations
and ensured that the waste, once removed from hazardous waste
regulation, will not pose a significant threat to human health and/or
the environment. The DRAS also uses the maximum estimated waste volumes
and the maximum reported total concentrations to predict possible risks
associated with releases of waste constituents through surface pathways
(e.g., volatilization or wind-blown particulate from the landfill). As
in the above ground water analyses, the DRAS uses the risk level, the
health-
[[Page 54764]]
based data and standard risk assessment and exposure algorithms to
predict maximum compliance-point concentrations of waste constituents
at a hypothetical point of exposure. Using fate and transport
equations, the DRAS uses the maximum compliance-point concentrations
and back-calculates the maximum allowable waste constituent
concentrations (or ``delisting levels'').
In most cases, because a delisted waste is no longer subject to
hazardous waste control, EPA is generally unable to predict, and does
not presently control, how a petitioner will manage a waste after
delisting. Therefore, EPA currently believes that it is inappropriate
to consider extensive site-specific factors when applying the fate and
transport model. EPA does control the type of unit where the waste is
disposed.
EPA also considers the applicability of ground water monitoring
data during the evaluation of delisting petitions. In this case, the
facilities have never directly disposed of this material in a solid
waste landfill, so no representative data exists. Therefore, EPA has
determined that it would be unnecessary to request ground water
monitoring data.
EPA believes that the descriptions of the wastes and analytical
characterization which illustrate the presence of toxic constituents at
lower concentrations in these waste streams provide a reasonable basis
to conclude that the likelihood of migration of hazardous constituents
from the petitioned waste will be substantially reduced so that short-
term and long-term threats to human health and the environment are
minimized.
The DRAS results, which calculated the maximum allowable
concentration of chemical constituents of the filter cake are presented
in Table 1. Based on the comparison of the DRAS results and maximum
TCLP concentrations found in Table 1, the petitioned waste should be
delisted because no constituents of concern are likely to be present or
formed as reaction products or by-products in BAE's waste.
F. What changes have been made to the DRAS model?
Since 2004, U.S. EPA has been preparing an update of the Delisting
Risk Assessment Software (DRAS) Version 2.0. The updates will be
released as DRAS version 3.0. The update addresses a number of issues
with version 2 and improved the fate and transport modeling.
To estimate the downgradient concentrations of waste leachate
constituents released into groundwater, the DRAS utilizes conservative
dilution-attenuation factors (DAFs) taken from Monte-Carlo applications
of U.S. EPA's Composite Model for Leachate Migration with
Transformation Products (CMTP). DRAS 3.0 includes all new DAFs from new
CMTP modeling runs. The new modeling takes advantage of: updated
saturated flow and transport modules; a new surface impoundment module
and database; model corrections for unrealistic scenarios (like water
tables modeled above the ground surface); new isotherms for metals; and
a revised recharge and infiltration database. As a result, many of the
DAFs used in previous versions of DRAS have changed. Further affecting
the groundwater calculation, the relationships for determining scaling
factors used to scale the DAFs to account for very small waste streams
have been updated to reflect the new database information on landfills
and surface impoundments and were also corrected for a metric
conversion of cubic meters to cubic yards. The new scaling factors are
generally higher than those of previous versions of DRAS, resulting in
higher estimated dilution and attenuation at lower waste volumes for
both landfills and surface impoundments.
The new metals DAFs, based on MINTEQA2 isotherms, can vary as a
function of the landfill leachate concentration. This means that the
effective DAF (including a scaling factor adjustment, if necessary) for
an input concentration may differ significantly with the effective DAF
that corresponds to the allowable leachate concentration. DRAS 3.0 now
displays the DAFs in both the forward calculated risk tables and the
tables of maximum allowable concentrations so that the difference is
evident to the user. The isotherms that vary by leachate concentration
are represented in DRAS by a look-up table with leachate concentrations
paired with DAFs. In the event that an actual concentration input to
DRAS lies between two values in the table, or an allowable receptor
concentration lies between two calculated receptor concentrations from
the table, DRAS 3.0 will linearly and proportionally extrapolate
between the two values to determine the corresponding exposure or
allowable leachate concentration.
EPA changed the calculation for particle emissions caused by
vehicles driving over the waste at the landfill to provide a more
realistic estimate. The estimate depends upon the number of trips per
day landfill vehicles make back and forth over the waste. In previous
versions of DRAS, this value was conservatively set at 100 trips per
day, corresponding with an extremely high annual waste volume. In DRAS
3.0, a minimum number of trips per day was conservatively assumed from
the Subtitle D landfill survey (7.4 trips per day at the 95th
percentile of values reported). The number of trips per day specific to
the actual waste volume is then added to the minimum to reflect the
impact of very large waste streams. This will considerably reduce the
particle emission estimate for wastes generated at all but the largest
annual volumes.
EPA added a conversion from English to metric tons to the
calculation of particle emissions from waste unloading, resulting in a
decrease of roughly 10% over previous versions of DRAS. We also made a
unit-conversion factor correction to part of the air-volatile pathway
which will reduce the impact to the receptor.
An error in the back-calculation for fish ingestion pathway was
corrected to reflect the difference between freely dissolved and total
water column waste constituent concentrations.
For the estimation of risk and hazard, we made a number of updates
to the forward and back calculations. Previous versions of DRAS assumed
that only 12.5% of particles are absorbed by the receptor's respiratory
system. This is no longer necessary as toxicity reference values for
inhalation currently recommended by U.S. EPA relate risk or hazard
directly to exposure concentration. DRAS 3.0 does not include the 12.5%
reduction. This change significantly increases estimated risks due to
particle inhalation and lowers corresponding allowable concentrations.
DRAS Version 3.0 has a reformulated back calculation of the
allowable leachate concentrations from exposure due to contaminants
volatilized during household water use to match the forward calculation
of risk. In previous versions of DRAS, the forward calculation summed
the risks from exposure to all three evaluated household compartments
(the shower, the bathroom, and the whole house) while the back
calculation based the maximum allowable level on the single most
conservative compartment. The DRAS 3.0 maximum allowable leachate
concentrations are now based on the combined impact of all three
compartments. The house exposure was also expanded to a 900 minute (15
hour) daily exposure to reflect non-working residents who have an
overall 16 hour in-house exposure (the other 1 hour is spent in the
shower and bathroom).
EPA resolved the inconsistencies with the way DRAS chooses limiting
[[Page 54765]]
pathways for specific waste constituents in DRAS 3.0.
EPA checked all toxicity reference values in DRAS and updated where
necessary. Approximately 180 changes were made to the toxicity
reference values in DRAS based on data in IRIS, PPRTV, HEAST, NCEA,
CalEPA and other sources. Some route-to-route extrapolations of oral
toxicity data to inhalation exposure have been returned to DRAS 3.0 is
consistent with Agency policy. See the Delisting Technical Support
Document for full accounting of this methodology. The same reference
also includes discussions of toxicity reference choices where the
multiple values were available or where the toxicity reference values
were specific to particular species of constituents.
The DRAS results, which calculated the maximum allowable
concentration of chemical constituents in the filter cake are presented
in Table 1. Based on the comparison of the DRAS results and maximum
TCLP concentrations found in Table 1, the petitioned waste should be
delisted because no constituents of concern are likely to be present or
formed as reaction products or by-products in BAE's waste.
G. What did EPA conclude about BAE's analysis?
EPA concluded, after reviewing BAE's processes that no other
hazardous constituents of concern, other than those for which BAE
tested, are likely to be present or formed as reaction products or by-
products in BAE's wastes. In addition, on the basis of explanations and
analytical data provided by BAE, pursuant to Sec. 260.22, EPA
concludes that the petitioned waste, filter cake, does not exhibit any
of the characteristics of ignitability, corrosivity, reactivity, or
toxicity. See Sec. Sec. 261.21, 261.22, 261.23, and 261.24,
respectively.
H. What other factors did EPA consider in its evaluation?
During the evaluation of this petition, in addition to the
potential impacts to the ground water, EPA also considered the
potential impact of the petitioned waste via non-ground water exposure
routes (i.e., air emissions and surface runoff) for the filter cake.
With regard to airborne dispersion in particular, EPA believes that
exposure to airborne contaminants from the petitioned waste is
unlikely. No appreciable air releases are likely from the filter cake
under any likely disposal conditions. EPA evaluated the potential
hazards resulting from the unlikely scenario of airborne exposure to
hazardous constituents released from the waste water in an open
landfill. The results of this worst-case analysis indicated that there
is no substantial present or potential hazard to human health and the
environment from airborne exposure to constituents from the filter
cake.
I. What is EPA's evaluation of this delisting petition?
The descriptions by BAE of the hazardous waste process and
analytical characterization, with the proposed verification testing
requirements (as discussed later in this notice), provide a reasonable
basis for EPA to grant the petition. The data submitted in support of
the petition show that constituents in the waste are below the maximum
allowable concentrations (See Table 1). EPA believes that the filter
cake generated by BAE contains hazardous constituents at levels which
will present minimal short-term and long-term threats from the
petitioned waste to human health and the environment.
Thus, EPA believes that it should grant to BAE an exclusion from
the list of hazardous wastes for the filter cake. EPA believes that the
data submitted in support of the petition show the BAE's filter cake to
be non-hazardous.
EPA has reviewed the sampling procedures used by BAE and has
determined they satisfy EPA's criteria for collecting representative
samples of variable constituent concentrations in the filter cake. The
data submitted in support of the petition show that constituents in
BAE's wastes are presently below the compliance-point concentrations
used in the delisting decision-making process and would not pose a
substantial hazard to the environment and the public. EPA believes that
BAE has successfully demonstrated that the filter cake is non-
hazardous.
EPA, therefore, proposes to grant an exclusion to BAE for the
filter cake described in its December 2005 petition. EPA's decision to
exclude this waste is based on analysis performed on samples taken of
the filter cake.
If EPA finalizes the proposed rule, EPA will no longer regulate
1,200 cubic yards/year of filter cake from BAE's Sealy facility under
parts 262 through 268 and the permitting standards of part 270.
IV. Next Steps
A. With what conditions must the petitioner comply?
The petitioner, BAE, must comply with the requirements in 40 CFR
part 261, Appendix IX, Table 2 as amended by this notice. The text
below gives the rationale and details of those requirements.
(1) Delisting Levels
This paragraph provides the levels of constituent concentrations
for which BAE must test in the filter cake, below which these wastes
would be considered non-hazardous.
EPA selected the set of inorganic and organic constituents
specified in paragraph (1) and listed in 40 CFR part 261, Appendix IX,
Table 2, based on information in the petition. EPA compiled the
inorganic and organic constituents list from descriptions of the
manufacturing process used by BAE, previous test data provided for the
waste, and the respective health-based levels used in delisting
decision-making. These delisting levels correspond to the allowable
levels measured in the leachable concentrations of the filter cake.
(2) Waste Holding and Handling
Waste classification as non-hazardous cannot begin until compliance
with the limits set in paragraph (1) has occurred for two consecutive
quarterly sampling events. For example, if BAE is issued a final
exclusion in August, the first quarter samples are due in November and
the second quarter samples are due in February. If EPA deems that both
the first and second quarter samples (a total of four) meet all the
delisting limits, classification of the waste as non-hazardous can
begin in March. If constituent levels in any sample taken by BAE exceed
any of the delisting levels set in paragraph (1), BAE must: (i) notify
EPA in accordance with paragraph (6), and; (ii) manage and dispose of
the filter cake as hazardous waste generated under Subtitle C of RCRA.
(3) Verification Testing Requirements
BAE must complete a verification testing program on the filter cake
to assure that the wastes do not exceed the maximum levels specified in
paragraph (1). If EPA determines that the data collected under this
paragraph do not support the data provided in the petition, the
exclusion will not cover the tested waste. This verification program
operates on two levels.
The first part of the quarterly verification testing program
consists of testing a batch of filter cake for specified indicator
parameters as described in paragraph (1). Each quarterly sampling event
will consist of at least two samples of the filter cake. Levels of
constituents measured in the samples of the filter cake that do not
exceed the levels set forth in paragraph (1) can be considered non-
hazardous after two consecutive quarters of sampling data meet the
levels listed in paragraph (1).
[[Page 54766]]
The second part of the verification testing program is the annual
testing of two representative composite samples of the filter cake for
all constituents specified in paragraph (1).
If BAE demonstrates for two consecutive quarters complete
attainment of all specified limits, then BAE may request approval of
EPA to reduce the frequency of testing to annually. If, after review of
performance of the treatment system, EPA finds that annual testing is
adequately protective of human health and the environment, then EPA may
authorize BAE to reduce the quarterly comprehensive sampling frequency
to an annual basis. If the annual testing of the wastes does not meet
the delisting levels in paragraph (1), BAE must notify EPA according to
the requirements in paragraph (6). EPA will then take the appropriate
actions necessary to protect human health and the environment as
described in paragraph (6). BAE must provide sampling results that
support the rationale that the delisting exclusion should not be
withdrawn.
The exclusion is effective upon publication in the Federal Register
but the change in waste classification as ``non-hazardous'' cannot
begin until two consecutive quarters of verification sampling comply
with the levels specified in paragraph (1). The waste classification as
``non-hazardous'' is also not authorized, if BAE fails to perform the
quarterly and yearly testing as specified herein. Should BAE fail to
conduct the quarterly/yearly testing as specified herein, then disposal
of filter cake as delisted waste may not occur in the following
quarter(s)/year(s) until BAE obtains the written approval of EPA.
(4) Changes in Operating Conditions
Paragraph (4) would allow BAE the flexibility of modifying its
processes (for example, changes in equipment or change in operating
conditions) to improve its treatment processes. However, BAE must prove
the effectiveness of the modified process and request approval from
EPA. BAE must manage wastes generated during the new process
demonstration as hazardous waste through verification sampling within
30 days of start-up.
(5) Data Submittals
To provide appropriate documentation that the BAE facility is
correctly managing the filter cake, BAE must compile, summarize, and
keep delisting records on-site for a minimum of five years. It should
keep all analytical data obtained pursuant to paragraph (3), including
quality control information, for five years. Paragraph (5) requires
that BAE furnish these data upon request for inspection by any employee
or representative of EPA or the State of Texas.
If the proposed exclusion is made final, then it will apply only to
1,200 cubic yards per calendar year of filter cake generated at the BAE
facility after successful verification testing.
EPA would require BAE to submit additional verification data under
any of the following circumstances:
(a) If BAE significantly alters the manufacturing process treatment
system except as described in paragraph (4).
(b) If BAE uses any new manufacturing or production process(es), or
significantly changes the current process(es) described in its
petition; or
(c) If BAE makes any changes that could affect the composition or
type of waste generated.
BAE must submit a modification to the petition complete with full
sampling and analysis for circumstances where the waste volume changes
and/or additional waste codes are added to the waste stream. EPA will
publish an amendment to the exclusion if the changes are acceptable.
BAE must manage waste volumes greater than 1,200 cubic yards of
filter cake as hazardous waste until EPA grants a revised exclusion.
When this exclusion becomes final, the management by BAE of the filter
cake covered in this petition would be relieved from Subtitle C
jurisdiction. BAE may not classify the waste as non-hazardous until the
revised exclusion is finalized.
(6) Reopener
The purpose of paragraph (6) is to require BAE 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. BAE 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
EPA to reevaluate the exclusion, if a source provides new or additional
information to EPA. 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 EPA
to deny the petition, if presented.
This provision expressly requires BAE to report differing site
conditions or assumptions used in the petition in addition to failure
to meet the annual testing conditions within 10 days of discovery. If
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 Sec. 268.6.
It is EPA's position that it has the authority under RCRA and the
Administrative Procedure Act (APA), 5 U.S.C. 551 (1978) et seq., to
reopen a delisting decision. EPA may reopen a delisting decision when
it receives new information that calls into question the assumptions
underlying the delisting.
EPA believes a clear statement of its authority in delisting is
merited in light of EPA's experience. See the Federal Register notice
regarding Reynolds Metals Company at 62 FR 37694 (July 14, 1997) and 62
FR 63458 (December 1, 1997) where the delisted waste leached at greater
concentrations into the environment than the concentrations predicted
when conducting the TCLP, leading EPA to repeal the delisting. If an
immediate threat to human health and the environment presents itself,
EPA will continue to address these situations on a case-by-case basis.
Where necessary, EPA will make a good cause finding to justify
emergency rulemaking. See APA 553(b)(3)(B).
B. What happens, if BAE violates the terms and conditions?
If BAE violates the terms and conditions established in the
exclusion, EPA will start procedures to withdraw the exclusion. Where
there is an immediate threat to human health and the environment, EPA
will evaluate the need for enforcement activities on a case-by-case
basis. EPA expects BAE 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 I as an interested party submit comments?
EPA is requesting public comments on this proposed decision. Please
send three copies of your comments. Send two copies to the Chief,
Corrective Action and Waste Minimization Section, Multimedia Permitting
and Planning Division, U.S. Environmental Protection Agency Region 6,
1445 Ross Avenue, Dallas, Texas 75202. Send a third copy to the
Industrial Hazardous Waste Permits Division, Technical Evaluation Team,
Texas Commission on Environmental Quality, P.O. Box 13087, Austin, TX
78711-3087. Identify your comments at the top with this regulatory
docket number: EPA-R06-RCRA-2008-0456. You may submit your comments
[[Page 54767]]
electronically to Wendy Jacques at [email protected].
B. How may I 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 6, 1445 Ross Avenue,
Dallas, TX 75202. It is available for viewing in EPA Freedom of
Information Act Review Room from 9 a.m. to 4 p.m., Monday through
Friday, excluding Federal holidays. Call (214) 665-6444 for
appointments. The public may copy material from any regulatory docket
at no cost for the first 100 pages and at fifteen cents per page for
additional copies.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this rule is not of general applicability
and therefore is not a regulatory action subject to review by the
Office of Management and Budget (OMB). This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a
particular facility only. Because this rule is of particular
applicability relating to a particular facility, it is not subject to
the regulatory flexibility provisions of the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because
this rule will affect only a particular facility, it will not
significantly or uniquely affect small governments, as specified in
section 203 of UMRA. Because this rule will affect only a particular
facility, this proposed rule does not have federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132, ``Federalism,'' (64
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply
to this rule. Similarly, because this rule will affect only a
particular facility, this proposed rule does not have tribal
implications, as specified in Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments'' (65 FR 67249, November 9,
2000). Thus, Executive Order 13175 does not apply to this rule. This
rule also is not subject to Executive Order 13045, ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant as
defined in Executive Order 12866, and because the Agency does not have
reason to believe the environmental health or safety risks addressed by
this action present a disproportionate risk to children. The basis for
this belief is that the Agency used the DRAS program, which considers
health and safety risks to infants and children, to calculate the
maximum allowable concentrations for this rule. This rule is not
subject to Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866. This rule does not involve technical
standards; thus, the requirements of section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do
not apply. As required by section 3 of Executive Order 12988, ``Civil
Justice Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule,
EPA has taken the necessary steps to eliminate drafting errors and
ambiguity, minimize potential litigation, and provide a clear legal
standard for affected conduct. The Congressional Review Act, 5 U.S.C.
801 et seq., as added by the Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides that before a rule may take
effect, the agency promulgating the rule must submit a rule report
which includes a copy of the rule to each House of the Congress and to
the Comptroller General of the United States. Section 804 exempts from
section 801 the following types of rules: (1) Rules of particular
applicability; (2) rules relating to agency management or personnel;
and (3) rules of agency organization, procedure, or practice that do
not substantially affect the rights or obligations of non-agency
parties 5 U.S.C. 804(3). EPA is not required to submit a rule report
regarding this action under section 801 because this is a rule of
particular applicability.
Lists of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: August 29, 2008.
Bill Luthans,
Acting Director, Multimedia Planning and Permitting Division, EPA
Region 6.
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 2 of Appendix IX of Part 261, add the following waste
stream in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Waste Excluded Under Sec. Sec. 260.20 and
260.22
Table 2--Waste Excluded From Specific Sources
------------------------------------------------------------------------
Facility Address Waste description
------------------------------------------------------------------------
* * * * * * *
BAE Systems, Inc............ Sealy, TX...... Filter Cake (EPA
Hazardous Waste Number
F019) generated at a
maximum rate of 1,200
cubic yards per calendar
year after [insert
publication date of the
final rule]. For the
exclusion to be valid,
BAE must implement a
verification testing
program that meets the
following Paragraphs:
[[Page 54768]]
(1) Delisting Levels: All
concentrations for those
constituents must not
exceed the maximum
allowable concentrations
in mg/l specified in
this paragraph. Filter
Cake Leachable
Concentrations (mg/l):
Acetone--3211; Arsenic--
0.052; Barium--100;
Bis(2-
ethylhexyl)phthalate--10
3; Cadmium--0.561;
Chloroform--0.4924;
Chromium--5.0; Copper--
149; Cyanide--19;
Furans--3.57; Hexavalent
Chromium--5.0; Lead--
3.57; Lindane--0.4;
Methyl Ethyl Ketone--
200; Nickel--82.2;
Selenium--1.0; 2,4,5-TP
(Silvex)--1.0; 2,4-D--
6.65; Tin--9001;
Tetrachlorodibenzo-p-
dioxin--249;
Tetrachloroethylene--0.1
25685; Zinc--1240.
(2) Waste Holding and
Handling:
(A) Waste classification
as non-hazardous can not
begin until compliance
with the limits set in
paragraph (1) for filter
cake has occurred for
two consecutive
quarterly sampling
events.
(B) If constituent levels
in any sample taken by
BAE exceed any of the
delisting levels set in
paragraph (1) for the
filter cake, BAE must do
the following:
(i) Notify EPA in
accordance with
paragraph (6) and
(ii) Manage and dispose
the filter cake as
hazardous waste
generated under Subtitle
C of RCRA.
(3) Testing Requirements:
Upon this exclusion
becoming final, BAE may
perform quarterly
analytical testing by
sampling and analyzing
the filter cake as
follows:
(A) Quarterly Testing:
(i) Collect two
representative composite
samples of the filter
cake at quarterly
intervals after EPA
grants the final
exclusion. The first
composite samples may be
taken at any time after
EPA grants the final
approval. Sampling
should be performed in
accordance with the
sampling plan approved
by EPA in support of the
exclusion.
(ii) Analyze the samples
for all constituents
listed in paragraph (1).
Any composite sample
taken that exceeds the
delisting levels listed
in paragraph (1) for the
filter cake must be
disposed as hazardous
waste in accordance with
the applicable hazardous
waste requirements.
(iii) Within thirty (30)
days after taking its
first quarterly sample,
BAE will report its
first quarterly
analytical test data to
EPA. If levels of
constituents measured in
the samples of the
filter cake do not
exceed the levels set
forth in paragraph (1)
of this exclusion for
two consecutive
quarters, BAE can manage
and dispose the non-
hazardous filter cake
according to all
applicable solid waste
regulations.
(B) Annual Testing:
(i) If BAE completes the
quarterly testing
specified in paragraph
(3) above and no sample
contains a constituent
at a level which exceeds
the limits set forth in
paragraph (1), BAE may
begin annual testing as
follows: BAE must test
two representative
composite samples of the
filter cake for all
constituents listed in
paragraph (1) at least
once per calendar year.
(ii) The samples for the
annual testing shall be
a representative
composite sample
according to appropriate
methods. As applicable
to the method-defined
parameters of concern,
analyses requiring the
use of SW-846 methods
incorporated by
reference in 40 CFR
260.11 must be used
without substitution. As
applicable, the SW-846
methods might include
Methods 0010, 0011,
0020, 0023A, 0030, 0031,
0040, 0050, 0051, 0060,
0061, 1010A, 1020B,
1110A, 1310B, 1311,
1312, 1320, 1330A,
9010C, 9012B, 9040C,
9045D, 9060A, 9070A
(uses EPA Method 1664,
Rev. A), 9071B, and
9095B. Methods must meet
Performance Based
Measurement System
Criteria in which the
Data Quality Objectives
are to demonstrate that
samples of the BAE
filter cake are
representative for all
constituents listed in
paragraph (1).
(iii) The samples for the
annual testing taken for
the second and
subsequent annual
testing events shall be
taken within the same
calendar month as the
first annual sample
taken.
(iv) The annual testing
report should include
the total amount of
waste in cubic yards
disposed during the
calendar year.
[[Page 54769]]
(4) Changes in Operating
Conditions: If BAE
significantly changes
the process described in
its petition or starts
any processes that
generate(s) the waste
that may or could affect
the composition or type
of waste generated (by
illustration, but not
limitation, changes in
equipment or operating
conditions of the
treatment process), it
must notify EPA in
writing and it may no
longer handle the wastes
generated from the new
process as non-hazardous
until the wastes meet
the delisting levels set
in paragraph (1) and it
has received written
approval to do so from
EPA. BAE must submit a
modification to the
petition complete with
full sampling and
analysis for
circumstances where the
waste volume changes and/
or additional waste
codes are added to the
waste stream.
(5) Data Submittals: BAE
must submit the
information described
below. If BAE fails to
submit the required data
within the specified
time or maintain the
required records on-site
for the specified time,
EPA, at its discretion,
will consider this
sufficient basis to
reopen the exclusion as
described in paragraph
(6). BAE must:
(A) Submit the data
obtained through
paragraph 3 to the
Chief, Corrective Action
and Waste Minimization
Section, Multimedia
Planning and Permitting
Division, U.S.
Environmental Protection
Agency Region 6, 1445
Ross Ave., Dallas, Texas
75202, within the time
specified. All
supporting data can be
submitted on CD-ROM or
some comparable
electronic media.
(B) Compile records of
analytical data from
paragraph (3),
summarized, and
maintained on-site for a
minimum of five years.
(C) Furnish these records
and data when either EPA
or the State of Texas
requests them for
inspection.
(D) Send along with all
data a signed copy of
the following
certification statement,
to attest to the truth
and accuracy of the data
submitted:
``Under civil and
criminal penalty of law
for the making or
submission of false or
fraudulent statements or
representations
(pursuant to the
applicable provisions of
the Federal Code, which
include, but may not be
limited to, 18 U.S.C.
1001 and 42 U.S.C.
6928), I certify that
the information
contained in or
accompanying this
document is true,
accurate and complete.
As to the (those)
identified section(s) of
this document for which
I cannot personally
verify its (their) truth
and accuracy, I certify
as the company official
having supervisory
responsibility for the
persons who, acting
under my direct
instructions, made the
verification that this
information is true,
accurate and complete.
If any of this
information is
determined by EPA in its
sole discretion to be
false, inaccurate or
incomplete, and upon
conveyance of this fact
to the company, I
recognize and agree that
this exclusion of waste
will be void as if it
never had effect or to
the extent directed by
EPA and that the company
will be liable for any
actions taken in
contravention of the
company's RCRA and
CERCLA obligations
premised upon the
company's reliance on
the void exclusion.''
(6) Reopener:
(A) If, anytime after
disposal of the delisted
waste BAE possesses or
is otherwise made aware
of any environmental
data (including but not
limited to leachate data
or ground water
monitoring data) or any
other data relevant to
the delisted waste
indicating that any
constituent identified
for the delisting
verification testing is
at level higher than the
delisting level allowed
by the Division Director
in granting the
petition, then the
facility must report the
data, in writing, to the
Division Director within
10 days of first
possessing or being made
aware of that data.
(B) If either the
quarterly or annual
testing of the waste
does not meet the
delisting requirements
in paragraph 1, BAE must
report the data, in
writing, to the Division
Director within 10 days
of first possessing or
being made aware of that
data.
(C) If BAE fails to
submit the information
described in paragraphs
(5), (6)(A) or (6)(B) or
if any other information
is received from any
source, the Division
Director will make a
preliminary
determination as to
whether the reported
information requires EPA
action to protect human
health and/or the
environment. Further
action may include
suspending, or revoking
the exclusion, or other
appropriate response
necessary to protect
human health and the
environment.
[[Page 54770]]
(D) If the Division
Director determines that
the reported information
requires action by EPA,
the Division Director
will notify the facility
in writing of the
actions the Division
Director believes are
necessary to protect
human health and the
environment. The notice
shall include a
statement of the
proposed action and a
statement providing the
facility with an
opportunity to present
information as to why
the proposed EPA action
is not necessary. The
facility shall have 10
days from the date of
the Division Director's
notice to present such
information.
(E) Following the receipt
of information from the
facility described in
paragraph (6)(D) or (if
no information is
presented under
paragraph (6)(D)) the
initial receipt of
information described in
paragraphs (5), (6)(A)
or (6)(B), the Division
Director will issue a
final written
determination describing
EPA actions that are
necessary to protect
human health and/or the
environment. Any
required action
described in the
Division Director's
determination shall
become effective
immediately, unless the
Division Director
provides otherwise.
(7) Notification
Requirements:
BAE Systems must do the
following before
transporting the
delisted waste. Failure
to provide this
notification will result
in a violation of the
delisting petition and a
possible revocation of
the decision.
(A) Provide a one-time
written notification to
any state Regulatory
Agency to which or
through which it will
transport the delisted
waste described above
for disposal, 60 days
before beginning such
activities.
(B) Update the one-time
written notification if
it ships the delisted
waste into a different
disposal facility.
(C) Failure to provide
this notification will
result in a violation of
the delisting variance
and a possible
revocation of the
decision.
* * * * * * *
------------------------------------------------------------------------
[FR Doc. E8-21227 Filed 9-22-08; 8:45 am]
BILLING CODE 6560-50-P