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[Federal Register Volume 76, Number 19 (Friday, January 28, 2011)]
[Proposed Rules]
[Pages 5110-5119]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-1794]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R06-RCRA-2010-1052; SW-FRL-9259-3]

Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Proposed Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to grant a petition submitted by Gulf West 
Landfill, TX, LP. (Gulf West) to exclude (or delist) the landfill 
leachate generated by Gulf West in Anahuac, Texas 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 February 28, 2011. We will stamp 
comments received after the close of the comment period as late. These 
late comments may or may not be considered in formulating a final 
decision. Your requests for a hearing must reach EPA by February 14, 
2011. 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- 2010-1052 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: peace.michelle@epa.gov.
    3. Mail: Michelle Peace, Environmental Protection Agency, 
Multimedia Planning and Permitting Division, RCRA Branch, Mail Code: 
6PD-C, 1445 Ross Avenue, Dallas, TX 75202.
    4. Hand Delivery or Courier: Deliver your comments to: Michelle 
Peace, Environmental Protection Agency, Multimedia Planning and 
Permitting Division, RCRA Branch, Mail Code: 6PD-C, 1445 Ross Avenue, 
Dallas, TX 75202.
    Instructions: Direct your comments to Docket ID No. EPA-R06-RCRA-
2010-1052. 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. 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 may be available either 
electronically in http://www.regulations.gov or in electronic or 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-2010-1052, 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 fifteen cents 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 technical information regarding 
the Republic Services, Inc./BFI Gulf West Landfill petition, contact 
Michelle Peace at 214-665-7430 or by e-mail at peace.michelle@epa.gov.
    Your requests for a hearing must reach EPA by February 14, 2011. 
The request must contain the information described in Sec.  260.20(d).

SUPPLEMENTARY INFORMATION: Gulf West 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 parts 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.
    EPA bases its proposed decision to grant the petition on an 
evaluation of waste-specific information provided by the petitioner. 
This decision, if finalized, would conditionally exclude

[[Page 5111]]

the petitioned waste from the requirements of hazardous waste 
regulations under the Resource Conservation and Recovery Act (RCRA).
    If finalized, EPA would conclude that Gulf West's petitioned waste 
is non-hazardous with respect to the original listing criteria. EPA 
would also conclude that Gulf West's process minimizes short-term and 
long-term threats from the petitioned waste to human health and the 
environment.

Table of Contents

    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 Gulf West 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 wastes did Gulf West petition EPA to delist?
    B. Who is Gulf West and what process does it use to generate the 
petitioned waste?
    C. How did Gulf West sample and analyze the data in this 
petition?
    D. What were the results of Gulf West's sample analysis?
    E. How did EPA evaluate the risk of delisting this waste?
    F. What did EPA conclude about Gulf West's analysis?
    G. What other factors did EPA consider in its evaluation?
    H. What is EPA's evaluation of this delisting petition?
IV. Next Steps
    A. With what conditions must the petitioner comply?
    B. What happens if Gulf West 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 
exclusions?
VI. Statutory and Executive Order Reviews

I. Overview Information

A. What action is EPA proposing?

    EPA is proposing to approve the delisting petition submitted by 
Gulf West to have the leachate from its landfill excluded, or delisted 
from the definition of a hazardous waste. The leachate derived from the 
management of several F- and K- waste codes. These wastes codes are 
F019, F039, K017, K019, and K020.

B. Why is EPA proposing to approve this delisting?

    Gulf West's petition requests an exclusion from the F019, F039, 
K017, K019, and K020 waste listings pursuant to 40 CFR 260.20 and 
260.22. Gulf West does not believe that the petitioned waste meets the 
criteria for which EPA listed it. Gulf West 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) (hereinafter all sectional 
references are to 40 CFR unless otherwise indicated). In making the 
initial delisting determination, EPA evaluated the petitioned waste 
against the listing criteria and factors cited in 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 
Gulf West is based on the information submitted in support of this 
rule, including descriptions of the wastes and analytical data from the 
Anahuac, Texas facility.

C. How will Gulf West manage the waste if it is delisted?

    If the leachate is delisted, Gulf West will dispose of the leachate 
at a publicly owned treatment works or at an industrial waste disposal 
facility.

D. When would the proposed delisting exclusion be finalized?

    RCRA section 3001(f) specifically requires EPA to provide a notice 
and an opportunity for comment before granting or denying a final 
exclusion. Thus, EPA will not grant the exclusion 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 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.
    EPA allows 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.
    EPA has also authorized some states (for example, Louisiana, 
Oklahoma, Georgia, Illinois) to administer a RCRA delisting program in 
place of the Federal program, that is, to make state delisting 
decisions. Therefore, this exclusion does not apply in those authorized 
states unless that state makes the rule part of its authorized program. 
If Gulf West transports the petitioned waste to or manages the waste in 
any state with delisting authorization, Gulf West must

[[Page 5112]]

obtain delisting authorization from that state before it can manage the 
waste as non-hazardous in the state.

II. Background

A. What is the history of the delisting program?

    EPA published an amended list of hazardous wastes from non-specific 
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 40 CFR 261.31 and 
261.32.
    EPA lists these wastes as hazardous because: (1) The wastes 
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), (2) the wastes 
meet the criteria for listing contained in Sec.  261.11(a)(2) or 
(a)(3), or (3) the wastes are mixed with or derived from the treatment, 
storage or disposal of such characteristic and listed wastes and which 
therefore become hazardous under Sec.  261.3(a)(2)(iv) or (c)(2)(i), 
known as the ``mixture'' or ``derived-from'' rules, respectively.
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
described in these regulations or resulting from the operation of the 
mixture or derived-from rules generally is hazardous, a specific waste 
from an individual facility may not be hazardous.
    For this reason, 40 CFR 260.20 and 260.22 provide an exclusion 
procedure, called delisting, which allows persons to prove that 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 consider the wastes 
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 40 CFR 260.22, a petitioner must prove that the 
waste does not exhibit any of the hazardous waste characteristics (that 
is, ignitability, reactivity, corrosivity, and toxicity) 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 40 CFR 260.22(a) and Sec.  
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 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.  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 Gulf West petition EPA to delist?

    In December 2009, Gulf West petitioned EPA to exclude from the 
lists of hazardous wastes contained in Sec. Sec.  261.31 and 261.32, 
landfill leachate (F019, F039, K017, K019, and K020) generated from its 
facility located in Anahuac, Texas. The waste falls under the 
classification of listed waste pursuant to Sec. Sec.  261.31 and 
261.32. Specifically, in its petition, Gulf West requested that EPA 
grant a standard exclusion for 6,436 cubic yards (150,000 gallons) per 
year of the landfill leachate.

B. Who is Gulf West and what process does it use to generate the 
petitioned waste?

    Gulf West Landfill is a disposal facility. There are no products 
manufactured at the site. The Landfill was built to RCRA construction 
standards for hazardous waste disposal. However, the site since 1993 
has not accepted hazardous waste and only accepts nonhazardous waste 
for disposal only. In separate instances Shell Oil and BAE Systems Inc. 
sent waste materials to the facility which were subsequently delisted 
but at the time of disposal at Gulf West Landfill were still considered 
hazardous wastes. The leachate generated from the landfill where these 
materials were disposed have been treated as F039 hazardous wastes 
which carry F019 and K017, K019, K020 waste codes as a result of the 
mixture and derived from rules. The petitioned waste is managed by 
collecting the liquids which have percolated through the land disposed 
wastes into the leachate collection system and conveying the leachate 
to storage tanks that are emptied into trucks for off-site disposal.

C. How did Gulf West sample and analyze the data in this petition?

    To support its petition, Gulf West submitted:
    (1) Historical information on waste generation and management 
practices; and
    (2) Analytical results from five samples for total concentrations 
of compounds of concern (COC)s.

D. What were the results of Gulf West's analyses?

    EPA believes that the descriptions of the Gulf West analytical 
characterization provide a reasonable basis to grant Gulf West's 
petition for an exclusion of the landfill leachate. EPA believes the 
data submitted in support of the petition show the landfill leachate is 
non-hazardous. Analytical data for the landfill leachate samples were 
used in the DRAS to develop delisting levels. The data summaries for 
COCs are presented in Table I. EPA has reviewed the sampling procedures 
used by Gulf West and has determined that it satisfies EPA criteria for 
collecting representative samples of the variations in constituent 
concentrations in the landfill leachate. In addition, the data 
submitted in support of the petition show that constituents in Gulf 
West's waste are presently below health-based levels used in the 
delisting decision-making. EPA believes that Gulf West has successfully 
demonstrated that the landfill leachate is non-hazardous.

[[Page 5113]]

  Table 1--Analytical Results/Maximum Allowable Delisting Concentration
   [Landfill Leachate Republic Services, Inc./BFI Gulf West Landfill,
                             Anahuac, Texas]
------------------------------------------------------------------------
                                                       Maximum allowable
          Constituent            Maximum TCLP (mg/l)    TCLP  delisting
                                                         level (mg/L)
------------------------------------------------------------------------
Acetone (2-propanone)..........  4.10E+00             1.27E+02
Antimony.......................  1.20E-02             5.68E-02
Arsenic........................  2.70E-01             3.37E-01
Barium.........................  1.80E+00             1.16E+01
Benzene........................  1.20E-02             1.88E-02
Beryllium......................  1.70E-04             1.03E+00
Cadmium........................  3.50E-04             5.10E-02
Carbon disulfide...............  5.20E-02             1.29E+01
Chromium.......................  2.40E-02             5.00E+00
Cobalt.........................  1.40E-02             3.18E-01
Copper.........................  1.10E-02             2.21E+01
Cresol m-......................  1.80E-01             7.06E+00
Cresol o-......................  5.30E+00             7.06E+00
Cresol p-......................  1.40E-01             7.06E-01
DDT p,p'-......................  2.30E-05             9.72E+25
Dioxane 1,4-...................  9.10E-01             2.39E+00
Endosulfan (Endosulfan I and     3.90E-04             1.55E+00
 II, mixture).
Endrin.........................  6.80E-05             2.0E-02
Ethyl ether....................  4.30E-03             2.25E+01
Ethylbenzene...................  1.10E-02             3.21E+00
HCH, (Hexachlorocyclohexane )    1.50E-04             4.00E-01
 (Lindane) gamma-.
HCH, beta-                       3.00E-05             2.26E-03
 (Hexachlorocyclohexane beta-
 BHC).
Heptachlor.....................  3.40E-04             8.0 E-03
Heptachlor epoxide.............  8.90E-05             8.0 E-03
Lead...........................  6.30E-03             2.57E+00
Mercury (Total)................  8.10E-05             1.25E-02
Methoxychlor...................  3.40E-04             1.0E+01
Methyl ethyl ketone............  5.40E-01             8.47E+01
Methyl isobutyl ketone.........  6.00E-01             1.13E+01
Nickel.........................  2.70E-01             5.74E+00
Selenium.......................  1.70E-02             4.47E-01
Silver.........................  1.40E-04             1.71E+00
Thallium.......................  4.08E-02             4.49 E-02
Tin............................  6.50E-03             5.43 E+04
Toluene........................  3.70E-02             3.93E+00
Trichlorophenoxy)propionic acid  7.00E-03             1.88E-01
 2-(2,4,5- (Silvex).
Trichlorophenoxyacetic acid      1.80E-02             1.41E+00
 2,4,5-.
Vanadium.......................  1.20E-01             4.88E+00
Xylenes (total)................  1.70E-02             2.90E+00
Zinc...........................  8.10E-02             7.77E+01
------------------------------------------------------------------------
Notes: These levels represent the highest constituent concentration
  found in any one sample and do not necessarily represent the specific
  level found in one sample.

E. How did EPA evaluate the risk of delisting the waste?

    For this delisting determination, EPA used such information 
gathered to identify plausible exposure routes (i.e., groundwater, 
surface water, air) for hazardous constituents present in the 
petitioned waste. EPA determined that disposal in a surface impoundment 
is the most reasonable, worst-case disposal scenario for Gulf West's 
petitioned waste. EPA applied the Delisting Risk Assessment Software 
(DRAS) described in 65 FR 58015 (September 27, 2000) and 65 FR 75637 
(December 4, 2000), 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 
Gulf West's petitioned waste on human health and the environment. A 
copy of this software can be found on the world wide Web at http://www.epa.gov/reg5rcra/wptdiv/hazardous/delisting/dras-software.html. In 
assessing potential risks to groundwater, EPA used the maximum waste 
volumes and the maximum reported extract concentrations as inputs to 
the DRAS program to estimate the constituent concentrations in the 
groundwater 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 1.0), the DRAS program 
can back-calculate the acceptable receptor well concentrations 
(referred to as compliance-point concentrations) using standard risk 
assessment algorithms and EPA health-based numbers. Using the maximum 
compliance-point concentrations and EPA's 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 groundwater.
    EPA believes that the EPACMTP fate and transport model represents a 
reasonable worst-case scenario for possible groundwater contamination 
resulting from disposal of the petitioned waste in a surface 
impoundment, and that a reasonable worst-case scenario is appropriate 
when evaluating whether a waste should be relieved of the

[[Page 5114]]

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 ensures that the waste, once 
removed from hazardous waste regulation, will not pose a significant 
threat to human health 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 from the impoundment). As in the above 
groundwater analyses, the DRAS uses the risk level, the health-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. The waste must be disposed in the type of unit the fate and 
transport model evaluates.
    The DRAS results which calculate the maximum allowable 
concentration of chemical constituents in the waste are presented in 
Table I. Based on the comparison of the DRAS and TCLP Analyses results 
found in Table I, the petitioned waste should be delisted because no 
constituents of concern tested are likely to be present or formed as 
reaction products or by-products in Gulf West waste.

F. What did EPA conclude about Gulf West's waste analysis?

    EPA concluded, after reviewing Gulf West's processes that no other 
hazardous constituents of concern, other than those for which tested, 
are likely to be present or formed as reaction products or by-products 
in the waste. In addition, on the basis of explanations and analytical 
data provided by Gulf West, pursuant to Sec.  260.22, EPA concludes 
that the petitioned waste does not exhibit any of the characteristics 
of ignitability, corrosivity, reactivity or toxicity. See Sec. Sec.  
261.21, 261.22 and 261.23, respectively.

G. What other factors did EPA consider in its evaluation?

    During the evaluation of Gulf West's petition, EPA also considered 
the potential impact of the petitioned waste via non-groundwater routes 
(i.e., air emission and surface runoff). With regard to airborne 
dispersion in particular, EPA believes that exposure to airborne 
contaminants from Gulf West's petitioned waste is unlikely. Therefore, 
no appreciable air releases are likely from Gulf West's waste under any 
likely disposal conditions. EPA evaluated the potential hazards 
resulting from the unlikely scenario of airborne exposure to hazardous 
constituents released from Gulf West's waste in an open impoundment. 
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 Gulf West's 
landfill leachate.

H. What is EPA's evaluation of this delisting petition?

    The descriptions of Gulf West's hazardous waste process and 
analytical characterization provide a reasonable basis for EPA to grant 
the exclusion. The data submitted in support of the petition show that 
constituents in the waste are below the leachable concentrations (see 
Table I). EPA believes that Gulf West's landfill leachate will not 
impose any threat to human health and the environment.
    Thus, EPA believes Gulf West should be granted an exclusion for the 
landfill leachate. EPA believes the data submitted in support of the 
petition show Gulf West's landfill leachate is non-hazardous. The data 
submitted in support of the petition show that constituents in Gulf 
West's waste are presently below the compliance point concentrations 
used in the delisting decision and would not pose a substantial hazard 
to the environment. EPA believes that Gulf West has successfully 
demonstrated that the landfill leachate is non-hazardous.
    EPA therefore, proposes to grant an exclusion to Gulf West in 
Anahuac, Texas, for the landfill leachate described in its petition. 
EPA's decision to exclude this waste is based on descriptions of the 
treatment activities associated with the petitioned waste and 
characterization of the landfill leachate.
    If EPA finalizes the proposed rule, EPA will no longer regulate the 
petitioned waste 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, Gulf West, must comply with the requirements in 40 
CFR part 261, Appendix IX, Table 1. The text below gives the rationale 
and details of those requirements.
    (1) Delisting Levels:
    This paragraph provides the levels of constituents for which Gulf 
West must test the landfill leachate, below which these wastes would be 
considered non-hazardous. EPA selected the set of inorganic and organic 
constituents specified in paragraph (1) of 40 CFR part 261, Appendix 
IX, Table 1, (the exclusion language) based on information in the 
petition. EPA compiled the inorganic and organic constituents list from 
the composition of the waste, descriptions of Gulf West's treatment 
process, 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 TCLP 
concentrations.
    (2) Waste Holding and Handling:
    The purpose of this paragraph is to ensure that Gulf West manages 
and disposes of any landfill leachate that contains hazardous levels of 
inorganic and organic constituents according to Subtitle C of RCRA. 
Managing the landfill leachate as a hazardous waste until initial 
verification testing is performed will protect against improper 
handling of hazardous material. If EPA determines that the data 
collected under this paragraph do not support the data provided for in 
the petition, the exclusion will not cover the petitioned waste. The 
exclusion is effective upon publication in the Federal Register but the 
disposal as non-hazardous cannot begin until the verification sampling 
is completed.
    (3) Verification Testing Requirements:
    Gulf West must complete a rigorous verification testing program on 
the landfill leachate to assure that the sludge does not exceed the 
maximum levels specified in paragraph (1) of the exclusion language. 
This verification program operates on two levels. The first part of the 
verification testing program consists of testing the landfill leachate 
for specified indicator parameters as per paragraph (1) of the 
exclusion language.
    If EPA determines that the data collected under this paragraph do 
not support the data provided for the

[[Page 5115]]

petition, the exclusion will not cover the generated wastes. If the 
data from the initial verification testing program demonstrate that the 
leachate meets the delisting levels, Gulf West may request quarterly 
testing. EPA will notify Gulf West in writing, if and when it may 
replace the testing conditions in paragraph (3)(A) with the testing 
conditions in (3)(B) of the exclusion language.
    The second part of the verification testing program is the 
quarterly testing of representative samples of landfill leachate for 
all constituents specified in paragraph (1) of the exclusion language. 
EPA believes that the concentrations of the constituents of concern in 
the landfill leachate may vary over time. Consequently, this program 
will ensure that the leachate is evaluated in terms of variation in 
constituent concentrations in the waste over time.
    The proposed subsequent testing would verify that the constituent 
concentrations of the landfill leachate do not exhibit unacceptable 
temporal and spatial levels of toxic constituents. EPA is proposing to 
require Gulf West to analyze representative samples of the landfill 
leachate quarterly during the first year of waste generation. Gulf West 
would begin quarterly sampling 60 days after the final exclusion as 
described in paragraph (3)(B) of the exclusion language.
    EPA, per paragraph 3(C) of the exclusion language, is proposing to 
end the subsequent testing conditions after the first year, if Gulf 
West has demonstrated that the waste consistently meets the delisting 
levels. To confirm that the characteristics of the waste do not change 
significantly over time, Gulf West must continue to analyze a 
representative sample of the waste on an annual basis. Annual testing 
requires analyzing the full list of components in paragraph (1) of the 
exclusion language. If operating conditions change as described in 
paragraph (4) of the exclusion language; Gulf West must reinstate all 
testing in paragraph (1) of the exclusion language.
    Gulf West must prove through a new demonstration that their waste 
meets the conditions of the exclusion. If the annual testing of the 
waste does not meet the delisting requirements in paragraph (1), Gulf 
West must notify EPA according to the requirements in paragraph (6) of 
the exclusion language. The facility must provide sampling results that 
support the rationale that the delisting exclusion should not be 
withdrawn.
    (4) Changes in Operating Conditions:
    Paragraph (4) of the exclusion language would allow Gulf West the 
flexibility of modifying its processes (for example, changes in 
equipment or change in operating conditions). However, Gulf West must 
prove the effectiveness of the modified process and request approval 
from EPA. Gulf West must manage wastes generated during the new process 
demonstration as hazardous waste until it has obtained written approval 
and paragraph (3) of the exclusion language is satisfied.
    (5) Data Submittals:
    To provide appropriate documentation that Gulf West's landfill 
leachate is meeting the delisting levels, Gulf West must compile, 
summarize, and keep delisting records on-site for a minimum of five 
years. It should keep all analytical data obtained through paragraph 
(3) of the exclusion language including quality control information for 
five years. Paragraph (5) of the exclusion language requires that Gulf 
West 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, it will apply only to 
6,436 cubic yards (per year of landfill leachate generated at the Gulf 
West after successful verification testing. EPA would require Gulf West 
to file a new delisting petition under any of the following 
circumstances:
    (a) If it significantly alters the process or treatment system 
except as described in paragraph (4) of the exclusion language;
    (b) If it significantly changes from the current process(es) 
described in their petition; or
    (c) If it makes any changes that could affect the composition or 
type of waste generated.
    Gulf West must manage waste volumes greater than 6,436 cubic yards 
per year of landfill leachate as hazardous until EPA grants a new 
exclusion.
    When this exclusion becomes final, Gulf West's management of the 
wastes covered by this petition would be relieved from Subtitle C 
jurisdiction, the landfill leachate from Gulf West will be treated and 
disposed at the Anahuac Wastewater Treatment Plant in Anahuac, TX or at 
the Newpark Industrial Facility in Winnie, TX.
    (6) Reopener:
    The purpose of paragraph (6) of the exclusion language is to 
require Gulf West 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. Gulf West 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 EPA 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 Gulf West 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.
    EPA believes that it has the authority under RCRA and the 
Administrative Procedures 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 delistings is 
merited in light of EPA's experience. See Reynolds Metals Company at 62 
FR 37694 and 62 FR 63458 where the delisted waste leached at greater 
concentrations in the environment than the concentrations predicted 
when conducting the TCLP, thus 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 Section 553(b).
    (7) Notification Requirements:
    In order to adequately track wastes that have been delisted, EPA is 
requiring that Gulf West provide a one-time notification to any state 
regulatory agency through which or to which the delisted waste is being 
carried. Gulf West must provide this notification 60 days before 
commencing this activity.

B. What happens if Gulf West violates the terms and conditions?

    If Gulf West 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 Gulf West to conduct the appropriate waste analysis 
and comply with the criteria explained above in paragraph (1) of the 
exclusion.

[[Page 5116]]

V. Public Comments

A. How can 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 Ben Banipal, 
Section Chief of the Corrective Action and Waste Minimization Section 
(6PD-C), Multimedia Planning and Permitting Division, Environmental 
Protection Agency (EPA), 1445 Ross Avenue, Dallas, Texas 75202. 
Identify your comments at the top with this regulatory docket number: 
``EPA-R6-RCRA-2010-1052 Republic Services, Inc./BFI Gulf West 
Landfill.'' You may submit your comments electronically to Michelle 
Peace at peace.michelle@epa.gov.
    You should submit requests for a hearing to Ben Banipal, Section 
Chief of the Corrective Action and Waste Minimization Section (6PD-C), 
Multimedia Planning and Permitting Division, U. S. Environmental 
Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202.

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 Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, 
Texas 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. You may 
also request the electronic files of the docket which do not appear on 
regulations.gov.

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 
record-keeping requirements.

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

    Dated: January 18, 2011.
Carl E. Edlund,
Director, Multimedia Planning and Permitting Division, 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 Tables 1 and 2 of Appendix IX to Part 261 add the waste 
stream ``Gulf West Landfill'' in alphabetical order by facility to read 
as follows:

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

[[Page 5117]]

                                Table 1--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
            Facility                         Address                             Waste description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Gulf West Landfill.............  Anahuac, TX....................  Landfill Leachate (EPA Hazardous Waste Numbers
                                                                   F019, F039, K017, K019, K020.) generated at a
                                                                   maximum rate of 1,300,000 gallons (6,436
                                                                   cubic yards) per calendar year after [insert
                                                                   publication date of the final rule].
                                                                  For the exclusion to be valid, Gulf West must
                                                                   implement a verification testing program for
                                                                   each of the waste streams that meets the
                                                                   following Paragraphs:
                                                                  (1) Delisting Levels: All concentrations for
                                                                   those constituents must not exceed the
                                                                   maximum allowable concentrations in mg/l
                                                                   specified in this paragraph.
                                                                  Landfill Leachate. Leachable Concentrations
                                                                   (mg/l): Antimony--0.0568; Acetone--127;
                                                                   Arsenic--0.337; Barium--11.6; Benzene--
                                                                   0.0188; Beryllium--1.03; Cadmium--0.051;
                                                                   Chromium--5.0; Cobalt--0.318; Copper--22.1; m-
                                                                   Cresol--7.06; o-Cresol- 7.06; p-Cresol--
                                                                   0.706; p,p- DDT -0.0103; 1,4- Dioxane--2.39;
                                                                   Endosulfan- 1.55; Endrin--0.02; Ethyl ether-
                                                                   22.5; Ethylbenzene--3.21; beta BHC- 0.0026;
                                                                   Heptachlor--0.008; Heptachlor epoxide- 0.008;
                                                                   Lead- 2.57; Lindane -0.4; Mercury- 0.0125;
                                                                   methoxychlor- 10; methyl ethyl ketone- 84.7;
                                                                   methyl isobutyl ketone- 11.3; nickel- 5.74;
                                                                   selenium-0.447; silver-1.71; Thallium-
                                                                   0.0449; tin-54,300; toluene-3.93; Silex-
                                                                   0.188; 2,4,5- trichlorophenoxyacetic acid-
                                                                   1.41; vanadium- 4.88; xylenes (total) -2.90;
                                                                   zinc-77.7.
                                                                  (2) Waste Holding and Handling:
                                                                  (A) Waste classification as non-hazardous can
                                                                   not begin until compliance with the limits
                                                                   set in paragraph (1) for the Landfill
                                                                   Leachate has occurred for four consecutive
                                                                   quarterly sampling events.
                                                                  (B) If constituent levels in any annual sample
                                                                   and retest sample taken by Gulf West exceed
                                                                   any of the delisting levels set in paragraph
                                                                   (1) for the Landfill Leachate, Gulf West must
                                                                   do the following:
                                                                  (i) notify EPA in accordance with paragraph
                                                                   (6) and
                                                                  (ii) manage and dispose the Landfill Leachate
                                                                   as hazardous waste generated under Subtitle C
                                                                   of RCRA.
                                                                  (3) Testing Requirements: Upon this exclusion
                                                                   becoming final, Gulf West must perform
                                                                   analytical testing by sampling and analyzing
                                                                   the Landfill Leachate as follows:
                                                                  (A) Initial Verification Testing:
                                                                  (i) Collect four representative composite
                                                                   samples of the Landfill Leachate at quarterly
                                                                   intervals after EPA grants the final
                                                                   exclusion. The first composite sample of each
                                                                   waste stream may be taken at any time after
                                                                   EPA grants the final approval. Sampling must
                                                                   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) indicates that the
                                                                   Landfill Leachate must continue to be
                                                                   disposed as hazardous waste in accordance
                                                                   with the applicable hazardous waste
                                                                   requirements until such time that four
                                                                   consecutive quarterly samples indicate
                                                                   compliance with delisting levels listed in
                                                                   paragraph (1).
                                                                  (iii) Within sixty (60) days after taking its
                                                                   last quarterly sample, Gulf West will report
                                                                   its analytical test data to EPA. If levels of
                                                                   constituents measured in the samples of the
                                                                   Landfill Leachate do not exceed the levels
                                                                   set forth in paragraph (1) of this exclusion
                                                                   for four consecutive quarters, Gulf West can
                                                                   manage and dispose the non-hazardous Landfill
                                                                   Leachate according to all applicable solid
                                                                   waste regulations.
                                                                  (B) Annual Testing:
                                                                  (i) If Gulf West 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), Gulf West must begin annual
                                                                   testing as follows: Gulf West must test a
                                                                   representative composite sample of the
                                                                   Landfill Leachate for all constituents listed
                                                                   in paragraph (1) at least once per calendar
                                                                   year. If any measured constituent
                                                                   concentration exceeds the delisting levels
                                                                   set forth in paragraph (1), Gulf West must
                                                                   collect an additional representative
                                                                   composite sample within 10 days of being made
                                                                   aware of the exceedence and test it
                                                                   expeditiously for the constituent(s) which
                                                                   exceeded delisting levels in the original
                                                                   annual sample.
                                                                  (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 Gulf West
                                                                   Landfill Leachate 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 delisted waste in cubic
                                                                   yards disposed during the calendar year.

[[Page 5118]]

 
                                                                  (4) Changes in Operating Conditions: If Gulf
                                                                   West 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 waste generated from the new
                                                                   process as non-hazardous until the waste meet
                                                                   the delisting levels set in paragraph (1) and
                                                                   it has received written approval to do so
                                                                   from EPA. Gulf West 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: Gulf West must submit the
                                                                   information described below. If Gulf West
                                                                   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). Gulf West 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 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 Gulf West 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 annual testing (and retest,
                                                                   if applicable) of the waste does not meet the
                                                                   delisting requirements in paragraph 1, Gulf
                                                                   West 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 Gulf West 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.
                                                                  (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 receipt 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: Gulf West 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) For onsite disposal a notice should be
                                                                   submitted to the State to notify the State
                                                                   that disposal of the delisted materials have
                                                                   begun.

[[Page 5119]]

 
                                                                  (C) Update one-time written notification, if
                                                                   it ships the delisted waste into a different
                                                                   disposal facility.
                                                                  (D) Failure to provide this notification will
                                                                   result in a violation of the delisting
                                                                   variance and a possible revocation of the
                                                                   decision.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

                                  Table 2--Waste Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
            Facility                         Address                             Waste description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Gulf West Landfill.............  Anahuac, TX....................  Landfill Leachate (EPA Hazardous Waste Numbers
                                                                   F019, F039, K017, K019, K020.) generated at a
                                                                   maximum rate of 1,300,000 gallons (6,436
                                                                   cubic yards) per calendar year after [insert
                                                                   publication date of the final rule].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2011-1794 Filed 1-27-11; 8:45 am]
BILLING CODE 6560-50-P
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