Federal Register / Vol. 69, No. 227 / Friday, November 26, 2004 / Proposed Rules 68851

personal $80x recourse liability of A’s, on 

January 1, 2007. Immediately after AB’s 

assumption of A’s personal $80x recourse 

liability, A is completely released from 

liability, and only B and C are ultimately 

liable on the $80x recourse debt. 

(ii) As in Example 8, the $360x liability is 

ignored for purposes of determining whether 

the transfers constitute a sale of A’s or B’s 

interest in AB because no partner assumes 

the $360x liability. However, AB’s 

assumption of A’s $80x recourse liability is 

treated as a transfer of consideration to A to 

the extent that the amount of the liability 

exceeds A’s share of that liability 

immediately after AB assumes the liability, 

determined as provided in paragraph (j)(4)(i) 

of this section. Under paragraph (j)(4)(i) of 

this section, A’s share of the recourse liability 

immediately following the assumption is 

zero. Thus, the assumption is treated as a 

transfer of $80x to A by AB on January 1, 

2007. Because C’s transfer of $100x to AB, 

and AB’s transfer of $80x to A, occurred 

within two years, the transfers are presumed 

to be a sale of a portion of A’s partnership 

interest in AB to C, under paragraph (c) of 

this section, unless the facts and 

circumstances clearly establish otherwise. 

There are no facts that rebut the presumption 

of sale treatment or that support the 

application of either of the presumptions 

against sale treatment provided in paragraphs 

(e) or (f) or the exception provided in 

paragraph (g) of this section. Thus, the 

transfers are treated as a sale of a portion of 

A’s partnership interest in AB to C. Under 

paragraph (a)(3)(i) of this section, the value 

of the partnership interest that A is treated 

as selling to C equals the lesser of the 

consideration transferred by AB to A, or the 

consideration transferred by C to AB. C 

transferred $100x to AB, and A received $80x 

from AB. Thus, A is treated as having sold 

a partnership interest in AB with a value of 

$80x to C. Under paragraph (a)(4) of this 

section, the amount realized by A on the sale 

of its partnership interest includes any 

reduction in A’s share of the $360x 

partnership liability that is treated as 

occurring as a result of the sale. Before the 

sale, A’s share of the nonrecourse liability 

under § 1.752–3(a)(3) was $180x (50% of the 

$360x liability). As a result of A’s sale of its 

$80x partnership interest in AB to C, A’s 

share of the nonrecourse liability under 

§ 1.752–3(a)(3) was reduced to $133x 

(because A’s partnership interest was 37% 

after the sale). Thus, A’s amount realized on 

the sale of its partnership interest equals 

$80x plus the reduction in A’s share of the 

$360x partnership liability of $47x ($180x ¥

$133x), or $127x. C also is treated as making, 

in its capacity as a partner, and without 

regard to any deemed contributions under 

section 752(a), a contribution to AB to which 

section 721 applies of $20x ($100x 

contribution ¥ $80x amount of sale).

Par. 7. Section 1.707–8 is amended as 

follows: 

1. Revising paragraph (a). 

2. Revising paragraph (c). 

The revisions read as follows:

§ 1.707–8 Disclosure of certain 

information. 

(a) In general. The disclosure referred 

to in § 1.707–3(c)(2) (regarding certain 

transfers made within seven years of 

each other), § 1.707–5(a)(7)(ii) (regarding 

a liability incurred within two years 

prior to a transfer of property), § 1.707–

5(a)(8) (relating to liabilities assumed 

within seven years of the transfer), 

§ 1.707–6(c) (relating to transfers of 

property from a partnership to a partner 

in situations analogous to those listed 

above), and § 1.707–7(k) (relating to 

certain transfers made within seven 

years of each other) is to be made in 

accordance with paragraphs (b) and (c) 

of this section.

* * * * *

(c) Parties required to disclose. The 

disclosure required by this section must 

be made by any person who makes a 

transfer that is required to be disclosed. 

The persons who are required to 

disclose may designate by written 

agreement a single person to make the 

disclosure. The designation of one 

person to make the disclosure does not 

relieve the other persons required to 

disclose from their obligation to make 

the disclosure if the designated person 

fails to make the disclosure in 

accordance with paragraph (b) of this 

section. 

Par. 8. Section 1.707–9 is amended as 

follows: 

1. Revising the heading for paragraph 

(a). 

2. Revising paragraph (a)(1).

3. Revising the heading for paragraph 

(a)(2), and adding a sentence at the end 

of the paragraph. 

4. Amending paragraph (a)(3) by 

removing the language ‘‘1.707–6’’ and 

adding ‘‘1.707–7’’ in its place. 

5. Revising paragraph (b). 

The revisions and addition read as 

follows:

§ 1.707–9 Effective dates and transitional 

rules. 

(a) Sections 1.707–3 through 1.707–

7—(1) In general. Except as provided in 

paragraph (a)(3) of this section, 

§§ 1.707–3 through 1.707–7 apply to any 

transaction with respect to which all 

transfers that are part of a sale of an item 

of property or of a partnership interest 

occur on or after the date these 

regulations are published as final 

regulations in the Federal Register. For 

any transaction with respect to which 

all transfers that are part of a sale of an 

item of property occur after April 24, 

1991, but before the date these 

regulations are published as final 

regulations in the Federal Register, 

§§ 1.707–3 through 1.707–6 as 

contained in 26 CFR edition revised 

April 1, 2004, (TD 8439) apply, except 

as provided in paragraph (a)(3) of this 

section. 

(2) Transfers occurring before 

effective dates. * * * In addition, 

except as provided in paragraph (a)(3) of 

this section, in the case of any 

transaction with respect to which one or 

more of the transfers occurs after April 

24, 1991, but before the date these 

regulations are published as final 

regulations in the Federal Register, the 

determination of whether the 

transaction is a disguised sale of a 

partnership interest under section 

707(a)(2)(B) is to be made on the same 

basis.

* * * * *

(b) * * * The disclosure provisions 

described in § 1.707–8 apply to 

transactions with respect to which all 

transfers that are part of a sale of 

property occur on and after the date 

these regulations are published as final 

regulations in the Federal Register. For 

transactions with respect to which all 

transfers that are part of a sale of 

property occur after September 30, 

1992, but before the date these 

regulations are published as final 

regulations in the Federal Register, the 

disclosure provisions as described in 

§ 1.707–8 as contained in the 26 CFR 

edition revised April 1, 2004, (TD 8439) 

apply.

* * * * *

§ 1.752–3 [Amended] 

Par. 9. Section 1.752–3 is amended in 

the sixth sentence of paragraph (a)(3) by 

revising the sentence ‘‘This additional 

method does not apply for purposes of 

§ 1.707–5(a)(2)(ii)’’ to read ‘‘This 

additional method does not apply for 

purposes of §§ 1.707–5(a)(2)(ii) and 

1.707–7(j)(4)(ii).’’

Mark E. Matthews, 

Deputy Commissioner for Services and 

Enforcement.

[FR Doc. 04–26112 Filed 11–24–04; 8:45 am] 

BILLING CODE 4830–01–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 261

[FRL–7842–9] 

Hazardous Waste Management 

System; Identification and Listing of 

Hazardous Waste

AGENCY: Environmental Protection 

Agency.

ACTION: Proposed rule.

68852 Federal Register / Vol. 69, No. 227 / Friday, November 26, 2004 / Proposed Rules 

1Although no one produces hazardous waste 

intentionally, many industrial processes result in 

the production of hazardous waste, as well as useful 

products and services. A ‘‘generating facility’’ is a 

facility in which hazardous waste is produced, and 

a ‘‘generator’’ is a person who produces hazardous 

waste or causes hazardous waste to be produced at 

a particular place. Please see 40 CFR 260.10 for 

regulatory definitions of ‘‘generator,’’ ‘‘facility,’’

‘‘person,’’ and other terms related to hazardous 

waste, and 40 CFR part 262 for regulatory 

requirements for generators.

SUMMARY: The Environmental Protection 

Agency (EPA, also ‘‘the Agency’’ or 

‘‘we’’ in this preamble) is proposing to 

modify a conditional exclusion (or 

‘‘delisting’’) from the lists of hazardous 

waste, previously granted to BMW 

Manufacturing Co., LLC (BMW), in 

Greer, South Carolina. This action 

responds to a petition for amendment 

requested by BMW to eliminate the total 

concentration limits its wastewater 

treatment sludge covered by its current 

conditional exclusion. 

The Agency is basing its tentative 

decision to grant the petition for 

amendment on a re-evaluation of the 

specific information initially provided 

by the petitioner in its original request 

and on an evaluation of delistings 

granted to other automobile 

manufactures for its F019 waste. This 

tentative decision, if finalized, would 

eliminate the total concentration limits 

of barium, cadmium, chromium, lead, 

nickel, and cyanide from its 

conditionally excluded 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.

DATES: EPA is requesting public 

comments on this proposed 

amendment. We will accept comments 

on this proposal until January 10, 2005. 

Comments postmarked after the close of 

the comment period will be stamped 

‘‘late.’’ These late comments may not be 

considered in formulating a final 

decision. 

Any person may request a hearing on 

this proposed decision by filing a 

request by December 13, 2004.

ADDRESSES: Send two copies of your 

comments to Narindar Kumar, Chief, 

RCRA Enforcement and Compliance 

Branch, U.S. Environmental Protection 

Agency, Region 4, Sam Nunn Atlanta 

Federal Center, 61 Forsyth Street, 

Atlanta, Georgia 30303. Send one copy 

to Cindy Carter, Appalachia III District, 

South Carolina Department of Health 

and Environmental Control, 975C North 

Church Street, Spartanburg, South 

Carolina 29303. 

Requests for a hearing should be 

addressed to Winston A. Smith, 

Director, Waste Management Division, 

U.S. Environmental Protection Agency, 

Region 4, Sam Nunn Atlanta Federal 

Center, 61 Forsyth Street, SW., Atlanta, 

Georgia 30303. The request must 

contain the information prescribed in 40 

CFR 260.20(d). 

The RCRA regulatory docket for this 

proposed rule is located at the EPA 

Library, U.S. Environmental Protection 

Agency, Region 4, Sam Nunn Atlanta 

Federal Center, 61 Forsyth Street, 

Atlanta, Georgia 30303, and is available 

for viewing from 9 a.m. to 4 p.m., 

Monday through Friday, excluding 

Federal holidays. The docket contains 

the petition, all information submitted 

by the petitioner, and all information 

used by EPA to evaluate the petition. 

The public may copy material from 

any regulatory docket at no cost for the 

first 100 pages, and at a cost of $0.15 per 

page for additional copies.

FOR FURTHER INFORMATION CONTACT: For 

general and technical information about 

this proposed amendment, contact Kris 

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, SW., Atlanta, Georgia 30303, 

(404) 562–8605.

SUPPLEMENTARY INFORMATION: The 

contents of today’s preamble are listed 

in the following outline:

I. Background 

A. What Laws and Regulations Give EPA 

the Authority to Delist Wastes? 

B. What is Currently Delisted at BMW? 

C. What Does BMW Request in Its Petition 

for Amendment? 

II. Disposition of Delisting Petition 

A. What Information Did BMW Submit to 

Support Its Petition for Amendment? 

B. How Did EPA Evaluate this Petition? 

1. How Did EPA Evaluate the 2000 BMW’s 

Petition? 

2. How Did EPA Evaluate this Proposed 

Amendment? 

C. What Conclusions Did EPA Reach? 

What Are the Terms of this Exclusion? 

III. Limited Effect of Federal Exclusion 

Will this Rule Apply in All States? 

IV. Effective Date 

V. Paperwork Reduction Act 

VI. National Technology Transfer and 

Advancement Act 

VII. Unfunded Mandates Reform Act 

VIII. Regulatory Flexibility Act, as Amended 

by the Small Business Regulatory 

Enforcement and Fairness Act 

IX. Executive Order 12866

X. Executive Order 12875

XI. Executive Order 13045

XII. Executive Order 13084

XIII. Submission to Congress and General 

Accounting Office 

XIV. Executive Order 13132

I. Background 

A. What Laws and Regulations Give EPA 

the Authority To Delist Wastes? 

On January 16, 1981, as part of its 

final and interim final regulations 

implementing section 3001 of RCRA, 

EPA published an amended list of 

hazardous wastes from non-specific and 

specific sources. This list has been 

amended several times, and is 

published in 40 CFR 261.31 and 261.32. 

These wastes are listed as hazardous 

because they exhibit one or more of the 

characteristics of hazardous wastes 

identified in subpart C of part 261 (i.e., 

ignitability, corrosivity, reactivity, and 

toxicity) or meet the criteria for listing 

contained in § 261.11 (a)(2) or (a)(3). 

Individual waste streams may vary, 

however, depending on raw materials, 

industrial processes, and other factors. 

Thus, while a waste that is described in 

these regulations generally is hazardous, 

a specific waste from an individual 

facility meeting the listing description 

may not be. For this reason, §§ 260.20 

and 260.22 provide an exclusion 

procedure, allowing persons to 

demonstrate that a specific waste from 

a particular generating 1 facility should 

not be regulated as a hazardous waste.

To have their wastes excluded, 

petitioners must show, first, that wastes 

generated at their facilities do not meet 

any of the criteria for which the wastes 

were listed. See § 260.22(a) and the 

background documents for the listed 

wastes. Second, the Administrator must 

determine, where he/she has a 

reasonable basis to believe that factors 

(including additional constituents) other 

than those for which the waste was 

listed could cause the waste to be a 

hazardous waste, that such factors do 

not warrant retaining the waste as a 

hazardous waste. Accordingly, a 

petitioner also must demonstrate that 

the waste does not exhibit any of the 

hazardous waste characteristics (i.e., 

ignitability, reactivity, corrosivity, and 

toxicity), and must present sufficient 

information for the EPA to determine 

whether the waste contains any other 

toxicants at hazardous levels. See 

§ 260.22(a), 42 U.S.C. 6921(f), and the 

background documents for the listed 

wastes. Although wastes which are 

‘‘delisted’’ (i.e., excluded) have been 

evaluated to determine whether or not 

they exhibit any of the characteristics of 

hazardous waste, generators remain 

obligated under RCRA to determine 

whether or not their wastes continue to 

be nonhazardous based on the 

hazardous waste characteristics (i.e., 

characteristics which may be 

Federal Register / Vol. 69, No. 227 / Friday, November 26, 2004 / Proposed Rules 68853

2 ‘‘SW–846’’ means EPA Publication SW–846, 

‘‘Test Methods for Evaluating Solid Waste, 

Physical/Chemical Methods.’’ Methods in this 

publication are referred to in today’s proposed rule 

as ‘‘SW–846,’’ followed by the appropriate method 

number.

promulgated subsequent to a delisting 

decision.) 

In addition, residues from the 

treatment, storage, or disposal of listed 

hazardous wastes and mixtures 

containing listed hazardous wastes are 

also considered hazardous wastes. See 

§ 261.3(a)(2)(iv) and (c)(2)(i), referred to 

as the ‘‘mixture’’ and ‘‘derived-from’’

rules, respectively. Such wastes are also 

eligible for exclusion and remain 

hazardous wastes until excluded. On 

December 6, 1991, the U.S. Court of 

Appeals for the District of Columbia 

vacated the ‘‘mixture/derived-from’’

rules and remanded them to the EPA on 

procedural grounds. Shell Oil Co. v. 

EPA, 950 F.2d 741 (D.C. Cir. 1991). On 

March 3, 1992, EPA reinstated the 

mixture and derived-from rules, and 

solicited comments on other ways to 

regulate waste mixtures and residues 

(57 FR 7628). These rules became final 

on October 30, 1992, 57 FR 49278, and 

should be consulted for more 

information regarding waste mixtures 

and solid wastes derived from 

treatment, storage, or disposal of a 

hazardous waste. The mixture and 

derived-from rules are codified in 40 

CFR 261.3 (b)(2) and (c)(2)(i). EPA plans 

to address waste mixtures and residues 

when the final portion of the Hazardous 

Waste Identification Rule (HWIR) is 

promulgated. 

On October 10, 1995, the 

Administrator delegated to the Regional 

Administrators the authority to evaluate 

and approve or deny petitions 

submitted in accordance with §§ 260.20 

and 260.22, by generators within their 

Regions (National Delegation of 

Authority 8–19), in States not yet 

authorized to administer a delisting 

program in lieu of the Federal program. 

On March 11, 1996, the Regional 

Administrator of EPA, Region 4, 

redelegated delisting authority to the 

Director of the Waste Management 

Division (Regional Delegation of 

Authority 8–19). 

B. What Is Currently Delisted at BMW? 

BMW manufactures BMW 

automobiles at its facility in Greer, 

South Carolina. On June 2, 2000, BMW 

petitioned EPA under the provisions in 

40 CFR 260.20 and 260.22 to exclude 

from hazardous waste regulations its 

F019 wastewater treatment sludge.

In support of its petition, BMW 

submitted sufficient information to EPA 

to allow us to determine that the waste 

was not hazardous based upon the 

criteria for which it was listed and that 

no other hazardous constituents were 

present in the waste at levels of 

regulatory concern. 

A full description of this waste and 

the Agency’s evaluation of the 2000 

BMW’s petition are contained in the 

proposed rule and request for comments 

published in the Federal Register on 

February 12, 2001, (66 FR 9781–9798). 

After evaluating public comment on 

the proposed rule, we published a final 

decision in the Federal Register on May 

2, 2001, (66 FR 21877–21886), to 

exclude BMW’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. 

EPA’s final decision in 2001 was 

conditional on the TCLP and total 

concentration limits of barium, 

cadmium, chromium, cyanide, lead, and 

nickel. If the sludge exceeds the TCLP 

or total concentration limits, then that 

sludge would have to be managed as 

hazardous waste. 

C. What Does BMW Request in Its 

Petition for Amendment? 

As a result of delistings granted to 

other automobile manufactures by EPA, 

BMW petitioned EPA on December 11, 

2003, for an amendment to its May 2, 

2001, final exclusion. 

In its petition, BMW requested to 

eliminate the total concentration limits. 

II. Disposition of Delisting Petition 

A. What Information Did BMW Submit 

To Support Its Petition for Amendment? 

BMW petitioned EPA, Region 4, on 

June 2, 2000, to exclude its F019 waste, 

on a generator-specific basis, from the 

lists of hazardous wastes in 40 CFR part 

261, subpart D. BMW requested EPA to 

review its original submittals to support 

its 2000 petition for this petition 

amendment to eliminate all total 

concentration limits. BMW also 

requested EPA to review other delisting 

petitions granted by EPA to automobile 

manufactures for the F019 waste to 

support this petition for amendment. 

In support of its 2000 petition, BMW 

submitted: (1) Descriptions of its 

manufacturing and wastewater 

treatment processes, the generation 

point of the petitioned waste, and the 

manufacturing steps that will contribute 

to its generation; (2) Material Safety 

Data Sheets (MSDSs) for materials used 

to manufacture automobiles and to treat 

wastewater; (3) the minimum and 

maximum annual amounts of 

wastewater treatment sludge generated 

from 1996 through 1999, and an 

estimate of the maximum annual 

amount expected to be generated in the 

future; (4) results of analysis for metals, 

cyanide, sulfide, fluoride, and volatile 

organic compounds in the currently 

generated waste at the BMW plants in 

Greer, South Carolina, and Dingolfing, 

Germany; (5) results of the analysis of 

leachate from these wastes, obtained by 

means of the Toxicity Characteristic 

Leaching Procedure ((TCLP), SW–846 

Method 1311 2); (6) results of the 

determinations for the hazardous 

characteristics of ignitability, 

corrosivity, and reactivity in these 

wastes; (7) results of determinations of 

dry weight percent, bulk density, and 

free liquids in these wastes; and (8) 

results of the analysis of the waste 

currently generated at the plant in 

Greer, South Carolina, by means of the 

Multiple Extraction Procedure (MEP), 

SW–846 Method 1320, in order to 

evaluate the long-term resistance of the 

waste to leaching in a landfill.

B. How Did EPA Evaluate This Petition? 

1. How Did EPA Evaluate the 2000 

BMW’s Petition? 

In making the initial delisting 

determination, EPA evaluated the 

petitioned waste against the listing 

criteria and factors cited in § 261.11 

(a)(2) and (a)(3). Based on this review, 

EPA agreed with the petitioner that the 

waste was nonhazardous with respect to 

the original listing criteria. (If EPA had 

found, based on this review, that the 

waste remained hazardous based on the 

factors for which the waste was 

originally listed, EPA would have 

proposed to deny the petition.) EPA 

then evaluated the waste with respect to 

other factors or criteria to assess 

whether there is a reasonable basis to 

believe that such additional factors 

could cause the waste to be hazardous. 

See § 260.22 (a) and (d). EPA considered 

whether the waste was acutely toxic, 

and considered the toxicity of the 

constituents, the concentration of the 

constituents in the waste, their tendency 

to migrate and to bioaccumulate, their 

persistence in the environment once 

released from the waste, plausible and 

specific types of management of the 

petitioned waste, the quantities of waste 

generated, and waste variability.

BMW submitted to EPA analytical 

data from its Greer, South Carolina plant 

and from the BMW plant in Dingolfing, 

Germany. Four composite samples of 

wastewater treatment sludge, from 

approximately 60 batches of wastewater, 

were collected from each plant over a 

three-week period. After reviewing this 

analytical data and information on 

68854 Federal Register / Vol. 69, No. 227 / Friday, November 26, 2004 / Proposed Rules 

3 ‘‘SW–846’’ means EPA Publication SW–846, 

‘‘Test Methods for Evaluating Solid Waste, 

Physical/Chemical Methods.’’ Methods in this 

publication are referred to in today’s proposed rule 

as ‘‘SW–846,’’ followed by the appropriate method 

number.

4The term, ‘‘Subtitle D landfill,’’ refers to a 

landfill that is licensed to land dispose 

nonhazardous wastes, that is, wastes that are not 

RCRA hazardous wastes. A Subtitle D landfill is 

subject to federal standards in 40 CFR parts 257 and 

258 and to state and local regulations for 

nonhazardous wastes and nonhazardous waste 

landfills.

processes and raw materials, EPA 

identified the following constituents of 

concern: barium, cadmium, chromium, 

cyanide, lead, and nickel. The 

maximum reported concentrations of 

the toxicity characteristic (TC) metals 

barium, cadmium, chromium, and lead 

in the TCLP extracts of the samples 

were below the TC regulatory levels. 

The maximum reported concentration of 

total cyanide in unextracted waste was 

3.35 milligrams per kilogram (mg/kg), 

which is greater than the generic 

exclusion level of 1.8 mg/kg for high 

temperature metal recovery (HTMR) 

residues in 40 CFR 261.3(c)(2)(ii)(C)(1), 

and less than 590 mg/kg, the Land 

Disposal Restrictions (LDR) Universal 

Treatment Standards (UTS) level, in 40 

CFR 268.48. Chromium was undetected 

in the TCLP extract of any sample. The 

maximum reported concentration of 

barium in unextracted samples was 144 

mg/kg for the German plant and 402 mg/

kg for the Greer, South Carolina plant. 

The maximum reported concentration of 

chromium in unextracted samples was 

100 mg/kg for the German plant and 222 

mg/kg for the Greer, South Carolina 

plant. The maximum concentration of 

nickel in the TCLP extract of any sample 

was 0.73 milligrams per liter (mg/l) for 

the German plant and 6.25 mg/l for the 

Greer, South Carolina plant. The 

maximum reported concentration of 

nickel in unextracted samples was 6,500 

mg/kg for the German plant and 1,700 

mg/kg for the Greer, South Carolina 

plant. See the proposed rule, 66 FR 

9781–9798, February 12, 2001, for 

details on BMW’s analytical data, 

production process, and generation 

process for the petitioned waste. 

After developing the list of 

constituents of concern, EPA calculated 

delisting levels for each of them using 

Maximum Contaminant Levels (MCLs) 

and EPA Composite Model for Landfills 

(EPACML) Dilution Attenuation Factors 

(DAFs) and calculated delisting levels 

and risks using Delisting Risk 

Assessment Software (DRAS) and EPA 

Composite Model for Leachate 

Migration with Transformation Products 

(EPACMTP) DAFs. 

EPA also used three additional 

methods of evaluating BMW’s delisting 

petition and determining delisting 

levels: (1) Use of the Multiple Extraction 

Procedure (MEP), SW–846 Method 

1320,3 to evaluate the long-term 

resistance of the waste to leaching in a 

landfill; (2) setting limits on total 

concentrations of constituents in the 

waste that are more conservative than 

results of calculations of constituent 

release from waste in a landfill to 

surface water and air, and release during 

waste transport; and (3) setting delisting 

levels at the Land Disposal Restrictions 

(LDR) Universal Treatment Standards 

(UTS) levels in 40 CFR 268.48. The UTS 

levels for BMW’s constituents of 

concern are the following: Barium: 21 

mg/l TCLP; Cadmium: 0.11 mg/l TCLP; 

Chromium: 0.60 mg/l TCLP; Cyanide 

Total: 590 mg/kg; Cyanide Amenable 30 

mg/kg; Lead: 0.75 mg/l TCLP; Nickel: 11 

mg/l TCLP.

After considering all public comments 

on the February 12, 2001, Proposed 

Rule, and the MEP analysis of the 

petitioned waste which indicated longterm resistance to leaching (see 66 FR 

9793–9794, February 12, 2001), EPA 

granted BMW, in the May 2, 2001, Final 

Rule, an exclusion from the lists of 

hazardous wastes in subpart D of 40 

CFR part 261 for its petitioned waste 

when disposed in a Subtitle D 4 landfill. 

In the 2001 Final Rule, BMW was 

required to meet delisting conditions 

based on the DRAS EPACMTP model in 

order for this exclusion to be valid. For 

details, see the following Federal 

Registers: 65 FR 75637–75651, 

December 4, 2000; 65 FR 58015–58031, 

September 27, 2000; the proposed rule 

for BMW’s petitioned waste, 66 FR 

9792–9793, February 12, 2001, and 

Final Rule for BMW’s petitioned waste, 

66 FR 21877–21886, May 2, 2001.

Delisting levels and risk levels 

calculated by DRAS, using the 

EPACMTP model, are presented in 

Table 1 below. DRAS found that the 

major pathway for human exposure to 

this waste is groundwater ingestion, and 

calculated delisting and risk levels 

based on that pathway. The input values 

required by DRAS were the chemical 

constituents in BMW’s petitioned waste; 

their maximum reported concentrations 

in the TCLP extract of the waste and in 

the unextracted waste; the maximum 

annual volume to be disposed (2,850 

cubic yards) in a landfill; the desired 

risk level, which was chosen to be no 

worse than 10¥6 for carcinogens; and a 

hazard quotient of no greater than 1 for 

non-carcinogens. The only carcinogenic 

constituent in the waste is cadmium, 

and cadmium also has non-carcinogenic 

toxic effects. Allowable total 

concentrations in the waste, as 

calculated by DRAS for the waste, itself, 

not the TCLP leachate, were all at least 

1,000 times greater than the actual 

maximum total concentrations found in 

the waste, and are not included in Table 

1, since many amount to metal or 

cyanide concentrations of several 

percent. However, in addition to limits 

on the concentrations of constituents in 

the TCLP leachate of the petitioned 

waste, EPA did set the following limits 

on total concentrations, in units of 

milligrams of constituent per kilogram 

of unextracted waste (mg/kg): Barium: 

2,000; Cadmium: 500; Chromium: 1,000; 

Cyanide (Total, not Amenable): 200; 

Lead: 2,000; and Nickel: 20,000. The 

maximum reported total concentrations 

for BMW’s petitioned waste were all 

below these limits. The limit for cyanide 

was chosen so that the waste could not 

exhibit the reactivity characteristic for 

cyanide by exceeding the interim 

guidance for reactive cyanide of 250 mg/

kg of releasable hydrogen cyanide (SW–

846, Chapter Seven, Section 7.3.3.)

TABLE 1.—DELISTING AND RISK LEVELS CALCULATED BY DRAS WITH EPACMTP MODEL FOR BMW PETITIONED WASTE

Constituent Delisting level

(mg/l TCLP) DAF 

DRAS-calculated risk 

for maximum 

concentration 

of carcinogen 

in waste 

DRAS-calculated hazard quotient 

for maximum 

concentration 

of non-carcinogen in 

waste 

Barium .................................................................................................................... 182a 69.2 4.87 × 10¥2

Cadmium ................................................................................................................ 1.4a 74.6 1.62 × 10¥13 3.57 × 10¥2

Federal Register / Vol. 69, No. 227 / Friday, November 26, 2004 / Proposed Rules 68855

5The term, ‘‘Subtitle D landfill,’’ refers to a 

landfill that is licensed to land dispose 

nonhazardous wastes, that is, wastes that are not 

RCRA hazardous wastes. A Subtitle D landfill is 

subject to federal standards in 40 CFR parts 257 and 

258 and to state and local regulations for 

nonhazardous wastes and nonhazardous waste 

landfills.

6 Delisting levels cannot exceed the Toxicity 

Characteristic (TC) regulatory levels. Therefore, 

although the DRAS EPACMTP calculates higher 

concentrations (see the proposed rule, 66 FR 9793, 

February 12, 2001, and Table 1, below), the 

delisting levels in the final rule are set at the TC 

levels for barium, cadmium, chromium, and lead. 

In order for the waste to be delisted, concentrations 

in the TCLP extract of the waste must be less than 

the TC levels. See the regulatory definition of a TC 

waste in 40 CFR 261.24.

TABLE 1.—DELISTING AND RISK LEVELS CALCULATED BY DRAS WITH EPACMTP MODEL FOR BMW PETITIONED

WASTE—Continued

Constituent Delisting level

(mg/l TCLP) DAF 

DRAS-calculated risk 

for maximum 

concentration 

of carcinogen 

in waste 

DRAS-calculated hazard quotient 

for maximum 

concentration 

of non-carcinogen in 

waste 

Chromium ............................................................................................................... 5.39 × 105 a 9,580 5.8 × 10¥7

Cyanide .................................................................................................................. 33.6 44.8 1.49 × 10¥3

Lead ....................................................................................................................... 187a 1.24 × 104 Not Calculable; No 

Reference 

Dose for 

Lead. 

Nickel ..................................................................................................................... 70.3 93.5 8.9 × 10¥2

Total Hazard Quotient for All Waste Constituents ......................................... 0.187

Total Carcinogenic Risk for the Waste (due to Cadmium) ............................ 1.62 × 10¥13

a These levels are all greater than the Toxicity Characteristic (TC) regulatory level in 40 CFR 261.24. A waste cannot be delisted if it exhibits a 

hazardous characteristic; therefore, the delisting level for each of these constituents could not be greater than the TC level of 100 for Barium; 1.0 

for Cadmium; 5.0 for Chromium; and 5.0 for Lead. 

2. How Did EPA Evaluate This Proposed 

Amendment? 

EPA reviewed the allowable total 

concentrations in the waste, as 

calculated by DRAS for the waste, to 

determine if increasing the barium total 

concentration limit 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 

proposes to grant BMW’s petition for 

amendment to eliminate all total 

concentration limits. EPA asks for 

public comment on this new totals limit 

set for barium which has been 

calculated to be both protective of 

human health and the environment and 

realistic, attainable values for BMW’s 

wastewater treatment sludge. 

C. What Conclusions Did EPA Reach? 

EPA believes that the information 

provided by BMW provides a reasonable 

basis to eliminate all total concentration 

limits. We, therefore, propose to grant 

BMW an amendment to its current 

delisting for an elimination of all total 

concentration limits on its delisted 

wastewater treatment sludge and are 

requesting comments solely on 

eliminating all total concentration 

limits. 

EPA believes that this proposal to 

eliminate all concentration limits will 

not harm human health and the 

environment when disposed in a 

nonhazardous waste landfill, if the 

proposed delisting levels are met. 

EPA proposes to eliminate all total 

concentration limits, based on 

descriptions of waste management and 

waste history, evaluation of the results 

of waste sample analysis, and on the 

requirement that BMW’s petitioned 

waste must meet this proposed 

amendment delisting level of all the 

constituents of concern concentration 

limits as state in the May 2, 2001, Final 

Rule before disposal. If this proposed 

amendment becomes final, the 

petitioned waste would not be subject to 

regulation under 40 CFR parts 262 

through 268 and the permitting 

standards of 40 CFR part 270. Although 

management of the waste covered by 

this petition would, upon final 

promulgation, be relieved from Subtitle 

C jurisdiction, the waste would remain 

a solid waste under RCRA. As such, the 

waste must be handled in accordance 

with all applicable Federal, State, and 

local solid waste management 

regulations. Pursuant to RCRA section 

3007, EPA may also sample and analyze 

the waste to determine if delisting 

conditions are met. 

EPA believes that BMW’s petitioned 

waste will not harm human health and 

the environment when disposed in a 

nonhazardous waste landfill if the 

delisting levels are met as granted in the 

May 2, 2001, Final Rule and amended 

in this petition. 

What Are the Terms of This Exclusion? 

The following summarizes the 

maximum allowable constituent 

concentrations (delisting levels) for 

BMW’s waste. We calculated these 

delisting levels for each constituent that 

is part of BMW’s current delisting based 

on the DRAS EPACMTP model, which 

grants BMW an exclusion from the lists 

of hazardous wastes in subpart D of 40 

CFR part 261 for its petitioned waste 

when disposed in a Subtitle D5 landfill. 

BMW must meet all of the following 

delisting conditions in order for this 

exclusion to be valid: delisting levels in 

mg/l in the TCLP extract of the waste of 

100.06 for Barium, 1.0 for Cadmium, 5.0 

for Chromium, 33.6 for Cyanide, 5.0 for 

Lead, and 70.3 for Nickel.

III. Limited Effect of Federal Exclusion 

Will This Rule Apply in All States? 

This proposed rule, if promulgated, 

would be issued under the Federal 

(RCRA) delisting program. States, 

however, are allowed to impose their 

own, non-RCRA regulatory 

requirements that are more stringent 

than EPA’s, pursuant to section 3009 of 

RCRA. These more stringent 

requirements may include a provision 

which prohibits a federally issued 

exclusion from taking effect in the 

States. Because a petitioner’s waste may 

be regulated under a dual system (i.e., 

both Federal and State programs), 

petitioners are urged to contact State 

68856 Federal Register / Vol. 69, No. 227 / Friday, November 26, 2004 / Proposed Rules 

regulatory authorities to determine the 

current status of their wastes under the 

State laws. Furthermore, some States are 

authorized to administer a delisting 

program in lieu of the Federal program, 

i.e., to make their own delisting 

decisions. Therefore, this proposed 

exclusion, if promulgated, would not 

apply in those authorized States. If the 

petitioned waste will be transported to 

any State with delisting authorization, 

BMW must obtain delisting 

authorization from that State before the 

waste may be managed as nonhazardous 

in that State.

IV. Effective Date 

This rule, if made final, will become 

effective immediately upon final 

publication. The Hazardous and Solid 

Waste Amendments of 1984 amended 

section 3010 of RCRA to allow rules to 

become effective in less than six months 

when the regulated community does not 

need the six-month period to come into 

compliance. That is the case here, 

because this rule, if finalized, would 

reduce the existing requirements for the 

petitioner. In light of the unnecessary 

hardship and expense that would be 

imposed on this petitioner by an 

effective date six months after 

publication and the fact that a sixmonth deadline is not necessary to 

achieve the purpose of section 3010, 

EPA believes that this exclusion should 

be effective immediately upon final 

publication. These reasons also provide 

a basis for making this rule effective 

immediately, upon final publication, 

under the Administrative Procedure 

Act, pursuant to 5 U.S.C. 553(d). 

V. Paperwork Reduction Act 

Information collection and recordkeeping requirements associated with 

this proposed rule have been approved 

by the Office of Management and 

Budget (OMB) under the provisions of 

the Paperwork Reduction Act of 1980 

(Public Law 96–511, 44 U.S.C. 3501 et 

seq.) and have been assigned OMB 

Control Number 2050–0053. 

VI. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, section 12(d) (15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This proposed rulemaking involves 

environmental monitoring or 

measurement. Consistent with the 

Agency’s Performance Based 

measurement System (‘‘PBMS’’), EPA 

proposes not to require the use of 

specific, prescribed analytical methods, 

except when required by regulation in 

40 CFR parts 260 through 270. Rather 

the Agency plans to allow the use of any 

method that meets the prescribed 

performance criteria. The PBMS 

approach is intended to be more flexible 

and cost-effective for the regulated 

community; it is also intended to 

encourage innovation in analytical 

technology and improved data quality. 

EPA is not precluding the use of any 

method, whether it constitutes a 

voluntary consensus standard or not, as 

long as it meets the performance criteria 

specified. 

VII. Unfunded Mandates Reform Act 

Under section 202 of the Unfunded 

Mandates Reform Act of 1995 

(‘‘UMRA’’), Public Law 104–4, which 

was signed into law on March 22, 1995, 

EPA generally must prepare a written 

statement for rules with Federal 

mandates that may result in estimated 

costs to State, local, and tribal 

governments in the aggregate, or to the 

private sector, of $100 million or more 

in any one year. When such a statement 

is required for EPA rules, under section 

205 of the UMRA EPA must identify 

and consider alternatives, including the 

least costly, most cost-effective or least 

burdensome alternative that achieves 

the objectives of the rule. EPA must 

select that alternative, unless the 

Administrator explains in the final rule 

why it was not selected or it is 

inconsistent with law. Before EPA 

establishes regulatory requirements that 

may significantly or uniquely affect 

small governments, including tribal 

governments, it must develop under 

section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, giving them 

meaningful and timely input in the 

development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising them 

on compliance with the regulatory 

requirements. 

The UMRA generally defines a 

Federal mandate for regulatory purposes 

as one that imposes an enforceable duty 

upon State, local, or tribal governments 

or the private sector. EPA finds that 

today’s proposed delisting decision is 

deregulatory in nature and does not 

impose any enforceable duty on any 

State, local, or tribal governments or the 

private sector. In addition, the proposed 

delisting does not establish any 

regulatory requirements for small 

governments and so does not require a 

small government agency plan under 

UMRA section 203. 

VIII. Regulatory Flexibility Act, as 

Amended by the Small Business 

Regulatory Enforcement and Fairness 

Act 

Pursuant to the Regulatory Flexibility 

Act, 5 U.S.C. 601–612, whenever an 

agency is required to publish a general 

notice of rulemaking for any proposed 

or final rule, it must prepare and make 

available for public comment a 

regulatory flexibility analysis that 

describes the impact of the rule on small 

entities (i.e., small businesses, small 

organizations, and small governmental 

jurisdictions). No regulatory flexibility 

analysis is required, however, if the 

Administrator or delegated 

representative certifies that the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. 

This rule, if promulgated, will not 

have an adverse economic impact on 

any small entities since its effect would 

be to reduce the overall costs of EPA’s 

hazardous waste regulations and would 

be limited to one facility. Accordingly, 

I hereby certify that this proposed 

regulation, if promulgated, will not have 

a significant economic impact on a 

substantial number of small entities. 

This regulation, therefore, does not 

require a regulatory flexibility analysis. 

IX. Executive Order 12866

Under Executive Order 12866, (58 FR 

51735 (October 4, 1993)) the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and therefore 

subject to Office of Management and 

Budget (OMB) review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition , jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

Federal Register / Vol. 69, No. 227 / Friday, November 26, 2004 / Proposed Rules 68857

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal of policy issues 

arising out of legal mandates, the 

President’s priorities or the principles 

set forth in the Executive Order.

OMB has exempted this proposed rule 

from the requirement for OMB review 

under section (6) of Executive Order 

12866. 

X. Executive Order 12875

Under Executive Order 12875, EPA 

may not issue a regulation that is not 

required by statute and that creates a 

mandate upon a state, local, or tribal 

government, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by those governments. If 

the mandate is unfunded, EPA must 

provide to the Office of Management 

and Budget a description of the extent 

of EPA’s prior consultation with 

representatives of affected state, local, 

and tribal governments, the nature of 

their concerns, copies of written 

communications from the governments, 

and a statement supporting the need to 

issue the regulation. In addition, 

Executive Order 12875 requires EPA to 

develop an effective process permitting 

elected officials and other 

representatives of state, local, and tribal 

governments ‘‘to provide meaningful 

and timely input in the development of 

regulatory proposals containing 

significant unfunded mandates.’’

Today’s rule does not create a mandate 

on state, local or tribal governments. 

The rule does not impose any 

enforceable duties on these entities. 

Accordingly, the requirements of 

section 1(a) of Executive Order 12875 do 

not apply to this rule. 

XI. Executive Order 13045

The Executive Order 13045 is entitled 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997). 

This order applies to any rule that EPA 

determines (1) is economically 

significant as defined under Executive 

Order 12866, and (2) the environmental 

health or safety risk addressed by the 

rule has a disproportionate effect on 

children. If the regulatory action meets 

both criteria, the Agency must evaluate 

the environmental health or safety 

effects of the planned rule on children, 

and explain why the planned regulation 

is preferable to other potentially 

effective and reasonably feasible 

alternatives considered by the Agency. 

This rule is not subject to Executive 

Order 13045 because this is not an 

economically significant regulatory 

action as defined by Executive Order 

12866. 

XII. Executive Order 13084

Under Executive Order 13084, EPA 

may not issue a regulation that is not 

required by statute, that significantly 

affects or uniquely affects the 

communities of Indian tribal 

governments, and that imposes 

substantial direct compliance costs on 

those communities, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by the tribal 

governments. If the mandate is 

unfunded, EPA must provide to the 

Office of Management and Budget, in a 

separately identified section of the 

preamble to the rule, a description of 

the extent of EPA’s prior consultation 

with representatives of affected tribal 

governments, a summary of the nature 

of their concerns, and a statement 

supporting the need to issue the 

regulation. In addition, Executive Order 

13084 requires EPA to develop an 

effective process permitting elected and 

other representatives of Indian tribal 

governments ‘‘to meaningful and timely 

input’’ in the development of regulatory 

policies on matters that significantly or 

uniquely affect their communities of 

Indian tribal governments. Today’s 

proposed rulemaking does not 

significantly or uniquely affect the 

communities of Indian tribal 

governments. Accordingly, the 

requirements of Section 3(b) of 

Executive Order 13084 do not apply to 

this proposed rule. 

XIII. Submission to Congress and 

General Accounting Office 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of 

Congress and to the Comptroller General 

of the United States. 

The EPA is not required to submit a 

rule report regarding today’s action 

under Section 801 because this is a rule 

of particular applicability, etc. Section 

804 exempts from Section 801 the 

following types of rules: rules of 

particular applicability; rules relating to 

agency management or personnel; and 

rules of agency organization, 

procedures, or practice that do not 

substantially affect the rights or 

obligations of non-agency parties. See 5 

U.S.C. 804(3). This rule will become 

effective on the date of publication as a 

final rule in the Federal Register. 

XIV. Executive Order 13132

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999) requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’

‘‘Policies that have federalism 

implications’’ is defined in the 

Executive Order to include regulations 

that have ‘‘substantial direct effects on 

the States, on the relationship between 

the national government and the States, 

or on the distribution of power and 

responsibilities among the various 

levels of government.’’

Under section 6 of Executive Order 

13132, EPA may not issue a regulation 

that has federalism implications, that 

impose substantial direct compliance 

costs, and that is not required by statute, 

unless the Federal government provides 

the funds necessary to pay the direct 

compliance costs incurred by State and 

local governments, or EPA consults with 

State and local officials early in the 

process of developing the proposed 

regulation. The EPA also may not issue 

a regulation that has federalism 

implications and that preempts State 

law unless the Agency consults with 

State and local officials early in the 

process of developing the proposed 

regulation. 

This action does not have federalism 

implication. It will not have a 

substantial direct effect on States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it 

affects only one facility.

List of Subjects in 40 CFR Part 261

Environmental protection, Hazardous 

waste, Recycling, Reporting and 

recordkeeping requirements.

Dated: November 10, 2004. 

Winston A. Smith, 

Director, Waste Management Division.

For the reasons set out in the 

preamble, 40 CFR part 261 is proposed 

to be amended as follows:

PART 261—IDENTIFICATION AND 

LISTING OF HAZARDOUS WASTE 

1. The authority citation for part 261 

continues to read as follows:

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

6922, 6924(y) and 6938.

68858 Federal Register / Vol. 69, No. 227 / Friday, November 26, 2004 / Proposed Rules 

2. In Table 1 of Appendix IX, Part 261 

revise the entry for BMW Manufacturing 

Co., LLC to read as follows:

Appendix IX to Part 261—Wastes 

Excluded Under §§ 260.20 and 260.22.

TABLE 1.—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES

Facility Address Waste Description 

*******

BMW Manufacturing Co., 

LLC.

Greer, South Carolina ........ Wastewater treatment sludge (EPA Hazardous Waste No. F019) that BMW Manufacturing Corporation (BMW) generates by treating wastewater from automobile 

assembly plant located on Highway 101 South in Greer, SouthCarolina. This is a 

conditional exclusion for up to 2,850 cubic yards of waste(hereinafter referred to 

as ‘‘BMW Sludge’’) that will be generated each year and disposed in a Subtitle D 

landfill after [date of final rule]. With prior approval by the EPA, following a public 

comment period,BMW may also beneficially reuse the sludge. BMW must demonstrate that the following conditions are met for the exclusion to be valid. 

(1) Delisting Levels: All leachable concentrations for these metals and cyanide 

must not exceed the following levels (ppm): Barium–100; Cadmium–1; Chromium–5; Cyanide–33.6, Lead–5; and Nickel–70.3. These metal and cyanide concentrations must be measured in the waste leachate obtained by the method 

specified in 40 CFR 261.24, except that for cyanide, deionized water must be the 

leaching medium. Cyanide concentrations in waste or leachate must be measured by the method specified in 40 CFR 268.40, Note 7. 

(2) Annual Verification Testing Requirements: Sample collection and analyses, including quality control procedures, must be performed according to SW–846 

methodologies, where specified by regulations in 40 CFR parts 260—270. Otherwise, methods must meet Performance Based Measurement System Criteria in 

which the Data Quality Objectives are to demonstrate that representative samples of the BMW Sludge meet the delisting levels in Condition (1). 

(A) Annual Verification Testing: BMW must implement 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: BMW must hold sludge containers utilized for 

verification sampling until composite sample results are obtained. If the levels of 

constituents measured in the composite samples of BMW Sludge do not exceed 

the levels set forth in Condition (1), then the BMW Sludge is non-hazardous and 

must be managed in accordance with all applicable solid waste regulations. If 

constituent levels in a composite sample exceed any of the delisting levels set 

forth in Condition (1), the batch of BMW Sludge generated during the time period 

corresponding to this sample must be managed and disposed of in accordance 

with Subtitle C of RCRA. 

(4) Changes in Operating Conditions: BMW must notify EPA in writing when significant changes in the manufacturing or wastewater treatment processes are implemented. EPA will determine whether these changes will result in additional constituents of concern. If so, EPA will notify BMW in writing that the BMW Sludge 

must be managed as hazardous waste F019 until BMW has demonstrated that 

the wastes meet the delisting levels set forth in Condition (1) and any levels established by EPA for the additional constituents of concern, and BMW has received written approval from EPA. IfEPA determines that the changes do not result in additional constituents of concern, EPA will notify BMW, in writing, that 

BMW must verify that the BMW Sludge continues to meet Condition (1) delisting 

levels. 

(5) Data Retention: Records of analytical data from Condition (2) must be compiled, summarized, and maintained by BMW for a minimum of three years, and 

must be furnished upon request by EPA or the State of South Carolina, and 

made available for inspection. Failure to 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). 

Federal Register / Vol. 69, No. 227 / Friday, November 26, 2004 / Proposed Rules 68859

TABLE 1.—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES—Continued

Facility Address Waste Description 

(6) Reopener Language: (A) If, at any time after disposal of the delisted waste, 

BMW possesses or is otherwise made aware of any environmental data (including but not limited to leachate data or groundwater monitoring data) or any other 

data relevant to the delisted waste indicating that any constituent identified in the 

delisting verification testing is at a level higher than the delisting level allowed by 

EPA in granting the petition, BMW must report the data, in writing, to EPA and 

South Carolina 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)(A), does not 

meet the delisting requirements of Condition (1), BMW must report the data, in 

writing, to EPA and South Carolina within 10 days of first possessing or being 

made aware of that data. (C) Based on the information described in paragraphs 

(6)(A) or (6)(B) and any other information received from any source, EPA will 

make a preliminary determination as to whether the reported information requires 

that EPA take action to protect human health or the environment. Further action 

may include suspending or revoking the exclusion, or other appropriate response 

necessary to protect human health and the environment. (D) If EPA determines 

that the reported information does require Agency action, EPA will notify the facility in writing of the action believed necessary to protect human health and the 

environment. The notice shall include a statement of the proposed action and a 

statement providing BMW with an opportunity to present information as to why 

the proposed action is not necessary. BMW shall have 10 days from the date of 

EPA’s notice to present such information. 

(E) Following the receipt of information from BMW, as described in paragraph 

(6)(D), or if no such information is received within 10 days, EPA will issue a final 

written determination describing the Agency actions that are necessary to protect 

human health or the environment, given the information received in accordance 

with paragraphs (6)(A) or (6)(B). Any required action described in EPA’s determination shall become effective immediately, unless EPA provides otherwise. 

(7) Notification Requirements: BMW must provide a one-time written notification to 

any State Regulatory Agency in a State to which or through which the delisted 

waste described above will be transported, at least 60 days prior to the commencement of such activities. Failure to provide such a notification will result in a 

violation of the delisting conditions and a possible revocation of the decision to 

delist. 

*******

[FR Doc. 04–26166 Filed 11–24–04; 8:45 am] 

BILLING CODE 6560–50–P

FEDERAL MARITIME COMMISSION

46 CFR Part 531

[Docket No. 04–12] 

RIN 3072–AC30

Non-Vessel Operating Common Carrier 

Service Arrangements

AGENCY: Federal Maritime Commission.

ACTION: Proposed rulemaking; extension 

of time. 

SUMMARY: The Commission by Notice of 

Proposed Rulemaking published 

November 3, 2004 (69 FR 63981) 

proposed an exemption from the tariff 

publication requirements of the 

Shipping Act of 1984 for service 

arrangements made by non-vesseloperating common carriers, subject to 

the conditional filing requirements set 

forth in this new Part. The Commission 

has received and determined to grant a 

request from the Department of Justice, 

for an extension of time to November 

30, 2004 to file comments in this 

proceeding.

DATES: Comments are now due 

November 30, 2004. Submit an original 

and 15 copies of comments (paper), or 

e-mail comments as an attachment in 

WordPerfect 10, Microsoft Word 2003, 

or earlier versions of these applications.

ADDRESSES: Address all comments 

concerning this proposed rule to: Bryant 

L. VanBrakle, Secretary, Federal 

Maritime Commission, 800 North 

Capitol Street, NW., Room 1046, 

Washington, DC 20573–0001; (202) 523–

5725, e-mail: Secretary@fmc.gov.

FOR FURTHER INFORMATION CONTACT:

Amy W. Larson, General Counsel, 

Federal Maritime Commission, 800 

North Capitol Street, NW., Room 1018, 

Washington, DC 20573–0001; (202) 523–

5740, e-mail: GeneralCounsel@fmc.gov;

and Austin L. Schmitt, Director, Office 

of Operations, Federal Maritime 

Commission, 800 North Capitol Street, 

NW., Room 1078, Washington, DC 

20573–0001, (202) 523–0988.

Bryant L. VanBrakle, 

Secretary.

[FR Doc. 04–26125 Filed 11–24–04; 8:45 am] 

BILLING CODE 6730–01–P

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 4

[ET Docket No. 04–35; FCC 04–188] 

Disruptions to Communications

AGENCY: Federal Communications 

Commission.

ACTION: Proposed rule.

SUMMARY: This document expands the 

record in this proceeding to focus 

specifically on the unique 

communications needs of airports, 

including wireless and satellite 

communications. In this regard, we 

request comment on the additional 

types of airport communications (e.g.,