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[Federal Register Volume 80, Number 192 (Monday, October 5, 2015)]
[Rules and Regulations]
[Pages 60052-60055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-24459]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R07-RCRA-2014-0452; FRL-9934-78-Region 7]

Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Direct Final Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to revise delisting levels for the hazardous waste 
exclusion granted to John Deere Des Moines Works (John Deere) of Deere 
& Company, in Ankeny, Iowa to exclude or ``delist'' up to 600 tons per 
calendar year of F006/F019 wastewater treatment sludge. The wastewater 
treatment sludge is a filter cake generated by John Deere's Ankeny, 
Iowa, facility wastewater treatment system was conditionally excluded 
from the list of hazardous wastes on November 25, 2014. This direct 
final rule responds to a request submitted by John Deere to increase 
certain delisting levels and eliminate certain delisting levels for the 
excluded waste. After careful analysis and use of the Delisting Risk 
Assessment Software (DRAS), EPA has concluded the request may be 
granted.

DATES: This direct final rule is effective on December 4, 2015, without 
further notice, unless EPA receives adverse comment by November 4, 
2015. If EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that this rule 
will not take effect.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R07-RCRA-2014-0452. All documents in the docket are listed on 
the www.regulations.gov Web site. 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, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through 
www.regulations.gov or in by contacting the further information contact 
below. 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: Kenneth Herstowski, Waste Remediation 
and Permits Branch, Air and Waste Management Division, EPA Region 7, 
11201 Renner Boulevard, Lenexa, KS 66219; telephone number (913) 551-
7631; email address: herstowski.ken@epa.gov.

SUPPLEMENTARY INFORMATION: The information in this section is organized 
as follows:

I. Why is EPA using a direct final rule?
II. Does this action apply to me?
III. Background
    A. What is a delisting petition?
    B. How did EPA act on John Deere's delisting petition?
    C. What are the changes John Deere is requesting?
    D. How did EPA evaluate John Deere's request?
    E. How does this final rule affect states?
IV. Statutory and Executive Order Reviews

I. Why is EPA using a direct final rule?

    The EPA is publishing this rule without a prior proposed rule 
because we view this as a non-controversial amendment and anticipate no 
adverse comment. This action narrowly changes the delisting levels for 
the F006/F019 wastewater treatment sludge generated at the John Deere 
Des Moines facility in Ankeny, Iowa. If the EPA receives adverse 
comment, we will publish a timely withdrawal in the Federal Register 
informing the public that this direct final rule will not take effect. 
In that case, we may issue a proposed rule to propose the changes and 
would address public comments in any subsequent final rule based on the 
proposed rule.

II. Does this action apply to me?

    This action only applies to the F006/F019 wastewater treatment 
sludge generated at the John Deere Des Moines facility in Ankeny, Iowa.

III. Background

A. What is a delisting petition?

    A delisting petition is a request from a generator to EPA or to an 
authorized state to exclude or delist, from the RCRA list of hazardous 
wastes, waste the generator believes should not be considered hazardous 
under RCRA.

B. How did EPA act on John Deere's delisting petition?

    After evaluating the delisting petition submitted by John Deere, 
EPA proposed, on August 20, 2014 (79 FR 49252), to exclude the waste 
from the lists of hazardous waste under Sec.  261.31. EPA issued a 
final rule on November 25, 2014 (79 FR 70108) granting John Deere's 
delisting petition to have up to 600 tons per year of the F006/F019 
wastewater treatment sludge generated

[[Page 60053]]

at the John Deere Des Moines, Ankney, Iowa, facility excluded, or 
delisted, from the definition of a hazardous waste, once it is disposed 
in a Subtitle D landfill.

C. What are the changes John Deere is requesting?

    John Deere requests removal of Table 1 item 1(C)--the requirement 
to conduct analysis of verification samples using EPA SW-846 Method 
1313 Extraction at pH 2.88, 7 and 13 and the requirement not to exceed 
hexavalent chromium level in the resulting [Method 1313] extracts.
    John Deere requests increases in delisting levels in Table 1 item 
1(D) as follows: Cadmium to 25.5 milligrams per kilogram (mg/kg), 
chromium (total) to 51,000 mg/kg, chromium (hexavalent) to 41 mg/kg, 
copper to 2877 mg/kg, nickel to 3030 mg/kg, zinc to 10,170, cyanide 
(total) to 9 mg/kg, and oil and grease to 64,500 mg/kg.
    John Deere requests the removal of delisting levels in Table 1 item 
1(D) for antimony, arsenic, barium, beryllium, cobalt, lead, mercury, 
selenium, silver, thallium, tin, vanadium, acetone, and methyl ethyl 
ketone.
    To support the request, John Deere submitted analytical data from 
verification testing events conducted since the exclusion was 
finalized. John Deere generated the sampling data under a Sampling Plan 
and Quality Assurance Project Plan (June 2012 Revision).

D. How did EPA evaluate John Deere's request?

    EPA evaluated the proposed increases in the delisting levels 
against the listing criteria and factors cited in Sec.  261.11(a)(2) 
and (a)(3). EPA evaluated the proposed increases in the delisting 
levels with respect to other factors or criteria to assess whether 
there is a reasonable basis to believe that such additional factors 
could cause the wastes to be hazardous. EPA considered whether the 
waste is acutely toxic, the concentrations 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.
    For this delisting determination, we assumed that the waste would 
be disposed in a Subtitle D landfill and we considered transport of 
waste constituents through groundwater, surface water and air. We 
evaluated John Deere's petitioned waste using the Agency's Delisting 
Risk Assessment Software (DRAS) described in 65 FR 58015 (September 27, 
2000), 65 FR 75637 (December 4, 2000), and 73 FR 28768 (May 19, 2008) 
to predict the maximum allowable concentrations of hazardous 
constituents that may be released from the petitioned waste after 
disposal and determined the potential impact of the disposal of John 
Deere's petitioned waste on human health and the environment. To 
predict the potential for release to groundwater from landfilled wastes 
and subsequent routes of exposure to a receptor, the DRAS uses dilution 
attenuation factors derived from EPA's Composite Model for Leachate 
Migration and Transformation Products (EPACMTP). From a release to 
groundwater, the DRAS considers routes of exposure to a human receptor 
of ingestion of contaminated groundwater, inhalation from groundwater 
while showering and dermal contact from groundwater while bathing.
    From a release to surface water by erosion of waste from an open 
landfill into storm water run-off, DRAS evaluates the exposure to a 
human receptor by fish ingestion and ingestion of drinking water. From 
a release of waste particles and volatile emissions to air from the 
surface of an open landfill, DRAS considers routes of exposure of 
inhalation of volatile constituents, inhalation of particles, and air 
deposition of particles on residential soil and subsequent ingestion of 
the contaminated soil by a child. The technical support document and 
the user's guide to DRAS are included in the docket.
    At a benchmark cancer risk of one in one hundred thousand 
(1x10-5) and a benchmark hazard quotient of 1.0, the DRAS 
program determined maximum allowable concentrations for each 
constituent in both the waste and the leachate at an annual waste 
volume of 1000 cubic yards disposed in a landfill for 20 years after 
which time the landfill is closed. We used the maximum reported total 
and TCLP leachate concentrations as inputs to estimate the constituent 
concentrations in the groundwater, soil, surface water and air.
    The maximum allowable total COC concentrations in the Filter Cake 
as determined by the DRAS are as follows: milligrams per kilogram (mg/
kg) Barium--2.85 x 10\7\; Copper--5.34 x 10\6\; Chromium (III)--4.56 x 
10\10\; Hexavalent Chromium--1.36 x 10\4\; Cyanide--2.99 x 10\6\; 
Lead--1.09 x 10\7\; Mercury--1.86 x 10\1\; Nickel--4.76 x 10\6\; 
Vanadium--1.52 x 10\8\; Zinc--1.38 x 10\7\; Acetone--3.63 x 10\8\; and 
Methyl Ethyl Ketone--1.45 x 10\9\. The maximum allowable leachate COC 
concentrations in the Filter Cake as determined by the DRAS are as 
follows: Milligrams per liter (mg/l) Copper--1.78 x 10\2\; Hexavalent 
Chromium--1.38 x 10\1\; Cyanide--2.27 x 10\1\; Lead--4.18 x 10\0\; 
Nickel--9.78 x 10\1\; Vanadium--2.47 x 10\1\; Zinc--1.48 x 10\3\; and 
Acetone--3.84 x 10\3\. The maximum allowable leachate COC 
concentrations in the Filter Cake as determined by TCLP are as follows: 
Milligrams per liter (mg/l) Barium--100; Chromium (total)--5; Mercury--
0.2; and Methyl Ethyl Ketone--200.
    The concentrations of all constituents in both the waste and the 
leachate are below the allowable concentrations. The requested changes 
in delisting levels are below the allowable concentrations. EPA's 
decision to grant the requested changes by John Deere is based on the 
information submitted in support of this direct final rule, and other 
information in the docket.

E. How does this final rule affect states?

    EPA is issuing this exclusion under the Federal RCRA delisting 
program. Thus, upon the exclusion being finalized, the wastes covered 
will be removed from Subtitle C control under the Federal RCRA program. 
This will mean, first, that the wastes will be delisted in any State or 
territory where the EPA is directly administering the RCRA program 
(e.g., Iowa, Indian Country). However, whether the wastes will be 
delisted in states which have been authorized to administer the RCRA 
program will vary depending upon the authorization status of the States 
and the particular requirements regarding delisted wastes in the 
various states.
    Some other generally authorized states have not received 
authorization for delisting. Thus, the EPA makes delisting 
determinations for such states. However, RCRA allows states to impose 
their own regulatory requirements that are more stringent than EPA's, 
under Section 3009 of RCRA. These more stringent requirements may 
include a provision that prohibits a Federally issued exclusion from 
taking effect in the state, or that requires a state concurrence before 
the Federal exclusion takes effect, or that allows the state to add 
conditions to any Federal exclusion. We urge the petitioner to contact 
the state regulatory authority in each state to or through which it may 
wish to ship its wastes to establish the status of its wastes under the 
state's laws.
    EPA has also authorized some states to administer a delisting 
program in place of the Federal program, that is, to make state 
delisting decisions. In such states, the state delisting requirements

[[Page 60054]]

operate in lieu of the Federal delisting requirements. Therefore, this 
exclusion does not apply in those authorized states unless the state 
makes the rule part of its authorized program. If John Deere transports 
the federally excluded waste to or manages the waste in any state with 
delisting authorization, John Deere must obtain a delisting 
authorization from that state before it can manage the waste as non-
hazardous in that state.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011), 
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 final 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 final 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 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 today's action under Section 
801 because this is a rule of particular applicability. Executive Order 
(EO) 12898 (59 FR 7629 (February 16, 1994)) establishes Federal 
executive policy on environmental justice. Its main provision directs 
Federal agencies, to the greatest extent practicable and permitted by 
law, to make environmental justice part of their mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The Agency's risk assessment did not identify risks from 
management of this material in a Subtitle D landfill. Therefore, EPA 
believes that any populations in proximity of the landfills used by 
this facility should not be adversely affected by common waste 
management practices for this delisted waste.

List of Subjects in 40 CFR Part 261

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

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

    Dated: September 14, 2015.
Mark Hague,
Acting Regional Administrator, Region 7.

    For the reasons set out in the preamble, EPA amends 40 CFR part 261 
as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
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.

0
2. In the second Table 1 of Appendix IX to part 261, ``Wastes Excluded 
From Non-Specific Sources'', in the entry for ``John Deere Des Moines 
Works of Deere & Company, Ankeny, IA'', revise entry ``1. Delisting 
Levels'' to read as follows:

Appendix IX to Part 261--Wastes Excluded Under Sec. Sec.  260.20 and 
260.22

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[[Page 60055]]

                               Table 1--Wastes Excluded From Non-Specific Sources
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               Facility                             Address                         Waste description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
John Deere Des Moines Works of Deere    Ankeny, IA....................
 Company.
 
                                                  * * * * * * *
                                                                        1. Delisting Levels: (A) The WWTS Filter
                                                                         Cake shall not exhibit any of the
                                                                         ``Characteristics of Hazardous Waste''
                                                                         in 40 CFR part 261, subpart C. (B) All
                                                                         TCLP leachable concentrations (40 CFR
                                                                         261.24(a)) for the following
                                                                         constituents must not exceed the
                                                                         following levels (mg/L for TCLP):
                                                                         Nickel--32.4. (C) Reserved. (D) All
                                                                         total concentrations for the following
                                                                         constituents must not exceed the
                                                                         following levels (mg/kg): Cadmium--
                                                                         25.5; Chromium (total)--51,000;
                                                                         Chromium (hexavalent)--41; Copper--
                                                                         2877; Nickel--3030; Zinc--10,170;
                                                                         Cyanide--9, Oil and Grease--64,500.
 
                                                  * * * * * * *
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[FR Doc. 2015-24459 Filed 10-2-15; 8:45 am]
 BILLING CODE 6560-50-P
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