Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules 75897

b. Will not cause a major increase in

costs or prices for consumers,

individual industries, federal, state, or

local government agencies, or

geographic regions.

c. Does not have significant adverse

effects on competition, employment,

investment, productivity, innovation, or

the ability of U.S. based enterprises to

compete with foreign-based enterprises.

This determination is based upon the

fact that the state submittal which is the

subject of this rule is based upon

counterpart federal regulations for

which an analysis was prepared and a

determination made that the federal

regulation was not considered a major

rule.

Unfunded Mandates

This rule will not impose a cost of

$100 million or more in any given year

on any governmental entity or the

private sector.

List of Subjects in 30 CFR Part 948

Intergovernmental relations, Surface

mining, Underground mining.

Dated: November 24, 2000.

Allen D. Klein,

Regional Director, Appalachian Regional

Coordinating Center.

[FR Doc. 00–30870 Filed 12–4–00; 8:45 am]

BILLING CODE 4310–05–P

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 311

[OSD Administrative Instruction 81]

Privacy Act; Implementation

AGENCY: Office of the Secretary.

ACTION: Proposed rule.

SUMMARY: The Office of the Secretary is

proposing to add an exemption rule for

a Privacy Act system of records. The

exemption is intended to increase the

value of the system of records and to

protect the privacy of individuals

identified in the system of records.

DATES: Comments must be received on

or before February 5, 2001 to be

considered by this agency.

ADDRESSES: Send comments to the OSD

Privacy Act Officer, Washington

Headquarter Services, Correspondence

and Directives Division, Records

Management Division, 1155 Defense

Pentagon, Washington, DC 20301–1155.

FOR FURTHER INFORMATION CONTACT: Mr.

David Bosworth at (703) 601–4725.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

It has been determined that this

Privacy Act rule for the Department of

Defense does not constitute ‘significant

regulatory action’. Analysis of the rule

indicates that it does not have an annual

effect on the economy of $100 million

or more; does not create a serious

inconsistency or otherwise interfere

with an action taken or planned by

another agency; does not materially alter

the budgetary impact of entitlements,

grants, user fees, or loan programs or the

rights and obligations of recipients

thereof; does not raise novel legal or

policy issues arising out of legal

mandates, the President’s priorities, or

the principles set forth in Executive

Order 12866 (1993).

Regulatory Flexibility Act

It has been determined that this

Privacy Act rule for the Department of

Defense does not have significant

economic impact on a substantial

number of small entities because it is

concerned only with the administration

of Privacy Act systems of records within

the Department of Defense.

Paperwork Reduction Act

It has been determined that this

Privacy Act rule for the Department of

Defense imposes no information

requirements beyond the Department of

Defense and that the information

collected within the Department of

Defense is necessary and consistent

with 5 U.S.C. 552a, known as the

Privacy Act of 1974.

List of Subjects in 32 CFR Part 311

Privacy.

1. The authority citation for 32 CFR

part 311 continues to read as follows:

Authority: Pub. L. 93–579, 88 Stat. 1896 (5

U.S.C. 552a).

2. Section 311.8 is amended by

adding paragraph (c)(7) to read as

follows:

§ 311.8 Procedures for exemptions.

* * * * *

(c) * * *

(7) System identifier and name: DGC

20, DoD Presidential Appointee Vetting

File.

(i) Exemption: Investigatory material

compiled solely for the purpose of

determining suitability, eligibility, or

qualifications for federal civilian

employment, military service, federal

contracts, or access to classified

information may be exempt pursuant to

5 U.S.C. 552a(k)(5), but only to the

extent that such material would reveal

the identity of a confidential source.

Portions of this system of records that

may be exempt pursuant to 5 U.S.C.

552a(k)(5) are subsections (d)(1) through

(d)(5).

(ii) Authority: 5 U.S.C. 552a(k)(5).

(iii) Reason: From (d)(1) through (d)(5)

because the agency is required to protect

the confidentiality of sources who

furnished information to the

government under an expressed promise

of confidentiality or, prior to September

27, 1975, under an implied promise that

the identity of the source would be held

in confidence. This confidentiality is

needed to maintain the Government’s

continued access to information from

persons who otherwise might refuse to

give it.

* * * * *

Dated: November 22, 2000.

L.M. Bynum,

Alternate OSD Federal Register Liaison

Officer, Department of Defense .

[FR Doc. 00–30472 Filed 12–4–00; 8:45 am]

BILLING CODE 5001–10–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 261

[SW–FRL–6904–3]

Hazardous Waste Management

System; Proposed Exclusion for

Identification and Listing Hazardous

Waste

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule and request for

comment.

SUMMARY: The EPA (also, ‘‘the Agency’’

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

to grant a petition submitted by Heritage

Environmental Services, LLC (Heritage)

to exclude (or ‘‘delist’’) treated Electric

Arc Furnace Dust (EAFD) produced at

Nucor Steel, Division of Nucor

Corporation (Nucor) located in

Crawfordsville, Indiana from the lists of

hazardous wastes contained in Subpart

D of Part 261.

The Agency has tentatively decided to

grant the exclusion based on an

evaluation of waste-specific information

provided by Heritage. This proposed

decision, if finalized, conditionally

excludes the petitioned waste from the

requirements of hazardous waste

regulations under the Resource

Conservation and Recovery Act (RCRA).

We conclude that Heritage’s

petitioned waste is nonhazardous with

respect to the original listing criteria.

DATES: Comments. We will accept

public comments on this proposed

decision until January 19, 2000. We will

75898 Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules

stamp comments postmarked after the

close of the comment period as ‘‘late.’’

These ‘‘late’’ comments may not be

considered in formulating a final

decision.

Request for Public Hearing. Your

request for a hearing must reach EPA by

December 20, 2000. The request must

contain the information prescribed in

§ 260.20(d).

ADDRESSES: Comments. Please send two

copies of your comments to Todd

Ramaly, Waste Management Branch

(DW–8J), Environmental Protection

Agency, 77 W. Jackson Blvd., Chicago,

IL, 60604.

Request for Public Hearing. Any

person may request a hearing on this

proposed decision by filing a request

with Robert Springer, Director, Waste,

Pesticides and Toxics Division (D–8J),

Environmental Protection Agency, 77

W. Jackson Blvd., Chicago, IL, 60604.

Docket. The RCRA regulatory docket

for this proposed rule is located at the

U.S. EPA Region 5, 77 W. Jackson Blvd.,

Chicago, IL 60604, and is available for

viewing from 8 a.m. to 4 p.m., Monday

through Friday, excluding federal

holidays. Call Todd Ramaly at (312)

353–9317 for appointments. The public

may copy material from the regulatory

docket at $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For

technical information concerning this

document, contact Todd Ramaly at the

address above or at 312–353–9317.

SUPPLEMENTARY INFORMATION: 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 Heritage manage the waste if

it is delisted?

D. When would EPA finalize the proposed

delisting exclusion?

E. How would this action affect States?

II. Background

A. What is the history of the delisting

program?

B. What is a delisting petition, and what

does it require of a petitioner?

C. What factors must EPA consider in

deciding whether to grant a delisting

petition?

III. EPA’s Evaluation of the Waste

Information and Data

A. What waste did Heritage petition EPA

to delist?

B. What information and analyses did

Heritage submit to support this petition?

C. How does Heritage generate the

petitioned waste?

D. How did Heritage sample and analyze

the data in this petition?

E. What were the results of Heritage’s

analysis?

F. How did EPA evaluate the risk of

delisting this waste?

G. What other factors did EPA consider in

its evaluation?

H. What did EPA conclude about

Heritage’s analysis?

I. What is EPA’s final evaluation of this

delisting petition?

IV. Conditions for Exclusion

A. What are the maximum allowable

concentrations of hazardous constituents

in the waste?

B. How frequently must Heritage test the

waste?

C. What must Heritage do if the process

changes?

D. What data must Heritage submit?

E. What happens if Heritage’s waste fails to

meet the conditions of the exclusion?

V. Regulatory Impact

VI. Regulatory Flexibility Act

VII. Paperwork Reduction Act

VIII. Unfunded Mandates Reform Act

IX. Executive Order 12875

X. Executive Order 13045

XI. Executive Order 13084

XII. National Technology Transfer And

Advancement Act

I. Overview Information

A. What Action Is EPA Proposing?

The EPA is proposing to grant

Heritage’s petition to have treated EAFD

from the production of steel at Nucor

excluded, or delisted, from the

definition of a hazardous waste.

Heritage petitioned EPA to exclude, or

delist, the EAFD because Heritage

believes that the petitioned waste does

not meet the RCRA criteria for which

EPA originally listed the waste. Heritage

also believes there are no additional

constituents or factors which could

cause the waste to be hazardous.

Based on our review described below,

we agree with the petitioner that the

waste is nonhazardous with respect to

the original listing criteria. Furthermore,

EPA finds no additional constituents or

factors which would cause the waste to

be hazardous. If our review had found

that the waste remained hazardous

based on the factors for which we

originally listed the waste, we would

have proposed to deny the petition.

B. Why Is EPA Proposing To Approve

This Delisting?

We believe that the petitioned waste

does not meet the criteria for which the

waste was originally listed and does not

contain other constituents at levels

which would cause it to be hazardous,

and therefore, should be delisted. Our

tentative decision to delist waste treated

by Heritage at Nucor’s Crawfordsville

facility is based on the description of

the process which generates the waste

and the analytical data submitted to

support today’s proposed rule.

In reviewing this petition, we

considered the original listing criteria

and the additional factors required by

the Hazardous and Solid Waste

Amendments of 1984 (HSWA). See 222

of HSWA, 42 U.S.C. 6921(f), and 40 CFR

Part 260.22 (d)(2) through (4). We

evaluated the petitioned waste against

the listing criteria and factors cited in

§§ 261.11(a)(2) and (3).

We also evaluated the waste for other

factors or criteria which could cause the

waste to be hazardous. These factors

included: (1) Whether the waste is

considered acutely toxic; (2) the toxicity

of the constituents; (3) the concentration

of the constituents in the waste; (4) the

tendency of the hazardous constituents

to migrate and to bioaccumulate; (5)

persistence of the constituents in the

environment once released from the

waste; (6) plausible and specific types of

management of the petitioned waste; (7)

the quantity of waste produced; and (8)

waste variability.

C. How Will Heritage Manage the Waste

If It Is Delisted?

If the petitioned waste is delisted,

Heritage must dispose of it in a Subtitle

D landfill licensed or permitted by a

State to manage industrial waste.

Heritage may also dispose of the

delisted waste in a permitted Subtitle C

landfill.

D. When Would EPA Finalize the

Proposed Delisting Exclusion?

HSWA specifically requires the EPA

to provide notice and an opportunity for

comment before granting or denying a

final exclusion. Thus, EPA will not

make a final decision or grant an

exclusion until it has addressed all

timely public comments (including any

at public hearings,) on today’s proposal.

Since this rule would reduce the

existing requirements for a person

generating hazardous wastes, the

regulated community does not need a

six-month period to come into

compliance in accordance with Section

3010 of RCRA as amended by HSWA.

Therefore, the exclusion would become

effective upon finalization.

E. How Would This Action Affect the

States?

Because EPA is issuing today’s

exclusion under the federal RCRA

delisting program, only states subject to

federal RCRA delisting provisions

would be affected. This exclusion may

not be effective in states having a dual

system that includes federal RCRA

requirements and their own

requirements, or in states which have

received our authorization 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

Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules 75899

section 3009 of RCRA. 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 (nonRCRA) programs) may regulate a

petitioner’s waste, we urge the

petitioners to contact the state

regulatory authority to establish the

status of their waste under the state law.

EPA has also authorized some states

to administer a delisting program in

place of the federal program, that is, to

make state delisting decisions.

Therefore, this exclusion does not apply

in those authorized states. If Heritage

transports the petitioned waste to or

manages the waste in any state with

delisting authorization, Heritage must

obtain delisting authorization from that

state before it can manage the waste as

nonhazardous in the state.

II. Background

A. What Is the History of the Delisting

Program?

The EPA published an amended list

of hazardous wastes from nonspecific

and specific sources on January 16,

1981, as part of its final and interim

final regulations implementing Section

3001 of RCRA. The EPA has amended

this list several times and published it

in 40 CFR 261.31 and 261.32.

We list these wastes as hazardous

because: (1) They typically and

frequently exhibit one or more of the

characteristics of hazardous wastes

identified in Subpart C of Part 261 (that

is, ignitability, corrosivity, reactivity,

and toxicity) or (2) they meet the criteria

for listing contained in §§ 261.11(a)(2)

or (3).

Individual waste streams may vary

depending on raw materials, industrial

processes, and other factors. Thus,

while a waste described in these

regulations generally is hazardous, a

specific waste from an individual

facility that meets the listing description

may not be.

For this reason, 40 CFR 260.20 and

260.22 provide an exclusion procedure,

called delisting, which allows a person

to demonstrate 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. In a delisting

petition, the petitioner must show that

the waste generated at a particular

facility do not meet any of the criteria

for listed wastes. The criteria for which

EPA lists a waste are in 40 CFR 261.11

and in the background documents for

the listed wastes.

In addition, a petitioner must

demonstrate that the waste does not

exhibit any of the hazardous waste

characteristics and must present

sufficient information for us to decide

whether factors other than those for

which the waste was listed warrant

retaining it as a hazardous waste. (See

§ 260.22, 42 U.S.C. 6921(f) and the

background documents for a listed

waste.)

A generator remains obligated under

RCRA to confirm that its waste remains

nonhazardous.

C. What Factors Must EPA Consider in

Deciding Whether To Grant a Delisting

Petition?

Besides considering the criteria in 40

CFR 260.22(a), 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 we listed the waste

if these additional factors could cause

the waste to be hazardous. (See The

Hazardous and Solid Waste

Amendments (HSWA) of 1984.)

EPA must also consider as a

hazardous waste, mixtures containing

listed hazardous wastes and wastes

derived from treatment of listed

hazardous waste. See 40 CFR

261.3(a)(2)(iv) and (c)(2)(i), called the

‘‘mixture’’ and ‘‘derived-from’’ rules,

respectively. These wastes are also

eligible for exclusion but remain

hazardous wastes until excluded.

III. EPA’s Evaluation of the Waste

Information and Data

A. What Wastes Did Heritage Petition

EPA To Delist?

August 3, 1999, Heritage petitioned

EPA to exclude an annual volume of

30,000 cubic yards of K061 EAFD

generated at Nucor Steel Corporation

located in Crawfordsville, Indiana from

the list of hazardous wastes contained

in 40 CFR 261.32. K061 is defined as

‘‘emission control dust/sludge from the

primary production of steel in electric

arc furnaces.’’ The EPA reviews a

petitioner’s estimated volume and, on

occasion, has requested a petitioner to

re-evaluate the estimated waste

generation rate. EPA accepts Heritage’s

estimate of annual volume of waste.

B. What Information and Analyses Did

Heritage Submit To Support This

Petition?

To support its petition, Heritage

submitted (1) descriptions and

schematic diagrams of the EAFD

treatment system; (2) analyses for

antimony, arsenic, barium, beryllium,

cadmium, chromium, lead, mercury,

nickel, selenium, silver, thallium,

vanadium, and zinc (a) for total

concentration, (b) by the Toxicity

Characteristic Leaching Procedure

(TCLP), SW–846 Method 1311, (c) by

the Multiple Extraction Procedure

(MEP), SW–846 Method 1312, and (d)

using the TCLP and MEP procedures

while substituting neutral and basic

extraction fluids for the acidic

extraction fluids specified in the

method; (3) total constituent analyses

for sulfide, and cyanide; (4) total

constituent analyses for semivolatile

organic compounds (SVOCs); (5) total

constituent analyses for volatile organic

compounds (VOCs); (6) total

polychlorinated biphenyls (PCBs); and

(7) total oil & grease.

C. How Is the Petitioned Waste

Generated?

The treated EAFD proposed for

exclusion has been generated at Nucor

since the facility began steel

manufacturing in 1989. Carbon and

stainless steel are manufactured from

scrap metal using two electric arc

furnaces. The exhaust from the furnaces

is conveyed via a capture system

designed to capture emissions from the

furnaces and the associated building.

Larger particles are removed in a

dropout chamber while the capture

system conveys the smaller particles for

capture in air pollution control devices

(i.e., baghouses). EAFD captured in the

baghouses is conveyed by a screw

conveyor system to two aboveground,

cone bottom silos that accumulate the

dust prior to introduction into the

treatment process. The EAFD is

conveyed from the accumulation silos

either by screw conveyor or by gravity,

to the treatment equipment.

The computer controlled treatment

system weighs a predetermined amount

of EAFD into a mixing device.

Treatment reagents are added

proportionally in sequential manner to

the mixing device. The mixing device

thoroughly blends the EAFD and the

treatment reagents in precise amounts

based on certain dust characteristics.

Once the mixing operation is

completed, the waste is conveyed to a

dump truck for transportation to a

landfill.

D. How Did Heritage Sample and

Analyze the Data in This Petition?

In consultation with EPA Region 5,

Heritage developed a list of analytical

constituents based on a review of the

EAFD and the treatment process. Three

75900 Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules

randomly collected composite samples

of treated carbon steel EAFD were

collected for testing each week over a

four week period for a total of twelve

samples during an initial round of

sampling. Each composite sample was

comprised of four grab samples that

were collected immediately after

loading from a roll-off box containing

treated EAFD. Heritage conducted a

second round of random sampling over

a four week period similar to the first

round with the exception of stainless

steel. A total of eight samples were

collected during the second round of

sampling and analysis. Treated stainless

steel samples were collected on two

days when the facility was generating

EAFD from stainless steel production.

Treated stainless steel samples were

randomly collected during the two days

of stainless steel production.

To quantify the total constituent and

extraction fluid concentrations, Heritage

used the following SW–846 Methods:

7041/6010 for antimony; 6010B for

arsenic, barium, beryllium, cadmium,

chromium, lead, nickel, selenium,

silver, thallium, vanadium, and zinc;

7470 for mercury; 9012 for total

cyanide; 9034 for total sulfide; 8082 for

PCBs; 8260 for volatile organic

compounds, 8270 for semivolatile

organic compounds, and 413.1 for Oil &

Grease.

During the initial round of sampling

and analysis, Heritage demonstrated

that the treated EAFD was stable when

using the TCLP. During the second

round of sampling and analysis,

Heritage demonstrated that the treated

EAFD is stable over a range of pH values

(acidic, neutral, and basic). In addition

to the TCLP, Heritage analyzed the

second round of samples using a

modified TCLP procedure, in which the

prescribed TCLP extraction fluid was

substituted with (1) a neutral extraction

fluid of reagent water (ASTM Type II

water) adjusted to pH 6.5 ± 0.05 using

1 N NaOH and (2) a basic extraction

fluid consisting of reagent water to

which high calcium hydrated lime was

added to reach a pH of 12.0 ± 0.05.

Heritage removed dissolved oxygen

from both the neutral and basic

extraction fluids to less than 0.5 ppm by

the addition of a stoichiometric amount

of sodium hydrosulfite. Heritage

believes it is appropriate to test

stabilized waste using an oxygen

depleted extraction fluid because it

believes that the environment of a solid

waste landfill is anaerobic or oxygen

depleted. Furthermore, to more closely

simulate the anaerobic environment of

the landfill, Heritage performed the

extraction procedure with zero

headspace in the extraction vessel and

performed the filtration step under a

nitrogen blanket. Heritage submitted

documentation to U.S. EPA supporting

Heritage’s belief that solid waste

landfills are oxygen depleted. Heritage

also submitted a summary of dissolved

oxygen data for leachate from their two

landfills in support of their assertion

that the landfill environment is

anaerobic. Heritage believes that the

oxygen depleted environment of the

buried waste in combination with

appropriate stabilization reagents

inhibits the mobilization of metallic

species.

Heritage analyzed four samples

following the Multiple Extraction

Procedure (MEP), SW 846 method 1320,

but substituting the TCLP procedure,

Method 1311 for the EP Tox test,

Method 1310. Heritage also analyzed

four additional samples following the

MEP method, but using a neutral

extraction fluid for all ten extractions.

E. What Were the Results of Heritage’s

Analysis?

Table 1 presents the maximum total

and leachate concentrations for 14

metals, total cyanide, and total sulfide.

The concentrations of metals in the

extract are the maximum obtained in

any of the three extraction fluids (acidic,

neutral, and basic).

Heritage analyzed one sample of

petitioned waste for 57 volatile organic

compounds, 72 semi-volatile organic

compounds, and eight Arochlor

mixtures of PCBs. There were no

detections of these organic constituents

in the treated EAFD samples. EPA does

not generally verify submitted test data

before proposing delisting decisions.

The sworn affidavit submitted with the

petition binds the petitioner to present

truthful and accurate results. Heritage

submitted a signed Certification of

Accuracy and Responsibility statement

presented in 40 CFR 260.22(i)(12).

F. How Did EPA Evaluate the Risk of

Delisting This Waste?

For this delisting determination, we

used information gathered to identify

plausible exposure routes (i.e., ground

water, surface water, air) for hazardous

constituents present in the petitioned

waste. We used a fate and transport

model to predict the release of

hazardous constituents from the

petitioned waste once it is disposed to

evaluate the potential impact of the

petitioned waste on human health and

the environment. To accomplish this,

we used a Windows based software tool,

the Delisting Risk Assessment Software

Program (DRAS), to estimate the

potential releases of waste constituents

and to predict the risk associated with

those releases using several EPA models

including the EPACMTP (EPA’s

Composite Model for leachate migration

with Transformation Products) fate and

transport model for groundwater

releases. For a detailed description of

the DRAS program and the EPACMTP

model, see 65 FR 58015, September 27,

2000. A technical support document for

the DRAS program is available in the

public docket.

Revisions have been made to the

DRAS program in order to improve the

modeling which are being implemented

for the first time in a draft exclusion.

Specifically, the groundwater inhalation

pathway was revised to reflect recent

advances in modeling household

inhalation from home water use (e.g.,

showering). The basis for estimating the

concentration of constituents in the

indoor air is based on the mass transfer

of constituent from water to shower air.

The initial version of DRAS used a fate

and transport model described in T.E.

McKone and K.T. Bogen’s 1992

Uncertainties in Health-Risk

Assessment: An Integrated Case Study

Based on Tetrachloroethylene in

California Groundwater, Regulatory

Toxicology and Pharmacology, 15: 86–

103, which predicted the highest waste

concentration emitted from the water

into the air during a given water use

period (e.g., 10-minute shower). This

method was revised to more accurately

predict the average concentration

occurring during the exposure event.

The revised model used in this

analysis is based on the equations

presented in T.E. McKone’s 1987

Human Exposure to Volatile Organic

Compounds in Household Tap Water:

The Indoor Inhalation Pathway,

Environmental Science and Technology,

21(12): 1194–1201. The shower model

estimates the change in the shower (or

bathroom or household) air

concentration based on the mass of

constituent lost by the water (fraction

emitted or emission rate) and the air

exchange rate between the various

model compartments (shower, the rest

of the bathroom, and the rest of the

house). The resulting differential

equations were solved using finite

difference numerical integration. The

average air concentration in the shower

and bathroom are obtained by averaging

the concentrations obtained for each

time step over the duration of the

exposure event (shower and bathroom

use). These concentrations and the

durations of daily exposure are used to

estimate risk from inhalation exposures

to residential use of groundwater.

Further, improvements were made to

more accurately reflect the transfer

efficiency of the waste constituent from

Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules 75901

the groundwater to the air compartment.

The fraction emitted from the bathroom

or household water use is a function of

the input transfer efficiency (or

maximum fraction emitted) and the

driving force for mass transfer (the

differential between air saturation

concentration at air/water interface and

bulk air concentration). For example, in

the shower compartment, the

constituent emission rate is estimated

from the change in the shower water

concentration as the water falls through

the air. The shower emissions can be

modeled based on falling droplets as a

means of estimating the surface-area-tovolume ratio for mass transfer and the

residence time of the water in the

shower compartment, assuming the

constituent concentration in the gas

phase is constant over the time frame of

the droplet fall. By assuming the drops

fall at terminal velocity, the surfacearea-to-volume ratio and the residence

time can be determined based solely on

droplet size. A droplet size of

approximately 1 mm (0.1 cm) was

selected. The terminal velocity for the

selected droplet size is approximately

400 cm/s. The fraction of constituent

emitted from a water droplet at any

given time can then be calculated.

The equations used to predict surface

volatilization from a landfill have been

modified to more accurately reflect true

waste concentration releases. The

previous version of DRAS used Farmer’s

equation to estimate the emission rate of

volatiles from the surface of the landfill.

Farmer’s equation assumes that the

emission originates as volatiles in

liquids trapped in the pore spaces

between solid particles of waste. The

volatiles evaporate from the liquid and

are emitted from the landfill following

gaseous diffusion through the solid

waste particles and soil cover to the

surface of the landfill. Farmer’s equation

requires the mole fraction of a given

volatile constituent in the liquid in

order to calculate the emission. The

previous version of DRAS used the

TCLP value of a volatile constituent in

the waste to approximate the mole

fraction of a given constituent in the

pore liquid. Since the TCLP test

includes a 20-fold dilution, the

calculation might underestimate the

available concentration of volatiles in

freshly deposited waste. The DRAS has

been revised to use Shen’s modification

of Farmer’s equation, described in U.S.

EPA Office of Air Quality Planning and

Standards’ 1984 Evaluation and

Selection of Models for Estimating Air

Emissions from Hazardous Waste

Treatment, Storage, and Disposal

Facilities, EPA–450/3–84–020. Shen

took the simplified version of Farmer’s

equation for vapor flux from a soil

surface and converted it to an emission

rate by multiplying it by the exposed

landfill area. Shen’s modification uses

the total waste constituent

concentration (weight fraction in the

bulk waste) to approximate the mole

fraction of that constituent in the liquid

phase.

In estimating the amount of a given

waste constituent that is released to

surface water and eventually becomes

freely dissolved in the water column,

previous delisting petitions and the

earlier version of the DRAS used the

maximum observed TCLP concentration

in waste as the total amount of the waste

constituent available for erosion.

Further, the former method assumed

that all of the constituent mass that

reached the stream, based on TCLP,

became dissolved in the aqueous phase.

Assuming complete conversion to a

dissolved state is overly conservative

and not in agreement with recent

Agency methodology. In the revised

DRAS, the total waste constituent

concentration is used to estimate the

constituent mass that reaches the

stream. The portion of the waste

constituent that becomes freely

dissolved is determined by an estimate

of partitioning between suspended

solids and the aqueous phase. This

methodology is described in U.S. EPA’s

1998 Human Health Risk Assessment

Protocol for Hazardous Waste

Combustion Facilities, Volume One.

Peer Review Draft, EPA530–D–98–001A.

Recent developments in mercury

partitioning described in the Mercury

Report to Congress, Volume III: Fate and

Transport of Mercury in the

Environment, EPA–452/R–97–005, led

to another revision to the surface water

pathway. The DRAS was modified to

account for bioaccumulation of methyl

mercury as a result of the release of

mercury into the surface water column.

The primary human health hazard

posed by the release of mercury into

surface water is through

bioaccumulation of methyl mercury in

fish followed by human consumption of

the contaminated fish. Biological

processes in surface water cause the

conversion, or methylation, of elemental

mercury to methyl mercury. In

accordance with the Human Health Risk

Assessment Protocol for Hazardous

Waste Combustion Facilities, Volume

One. Peer Review Draft, 15% of mercury

in the water column is assumed to be

converted to methyl mercury. This

fraction is then used, along with the

current bioaccummulation factor, to

determine the predicted concentration

of methyl mercury in fish tissue.

The maximum allowable leachate

concentrations and the point of

exposure (POE) concentrations of

concern in groundwater are also

presented in Table 1. For inorganic

constituents, the maximum reported

leachate concentrations for metals in the

treated EAFD were well below the

health-based levels of concern used in

decision-making for delisting. No

organic constituents were detected. We

believe that it is inappropriate to

evaluate non-detectable concentrations

of a constituent of concern in our

modeling efforts if the non-detectable

value was obtained using the

appropriate analytical method. For

constituents which are not detected in

the extract but are detected as a total

concentration, the DRAS model requires

that the detection level be entered along

with the other data. For these

constituents, the DRAS uses one-half of

the detection level to calculate risk.

G. What Other Factors Did EPA

Consider in Its Evaluation?

We also considered the applicability

of ground-water monitoring data during

the evaluation of delisting petitions. In

this case, we determined that it would

be inappropriate to request groundwater monitoring data because the waste

is currently disposed off-site. For a

petitioner using off-site management,

EPA believes that, in most cases, the

ground water monitoring data would

not be meaningful. Most commercial

land disposal facilities accept waste

from numerous generators. Any ground

water contamination or leachate would

be characteristic of the total volume of

waste disposed of at the site. In most

cases, EPA believes that it would be

impossible to isolate ground water

impacts associated with any one waste

disposed of in a commercial landfill.

Therefore, we did not request ground

water monitoring data from Heritage.

Potential impacts of the petitioned

waste via air emission and storm water

run-off are also addressed in the DRAS.

H. What Did EPA Conclude About

Heritage’s Analysis?

After reviewing Heritage’s petition,

the EPA concludes that (1) no hazardous

constituents are likely to be present

above health based levels of concern in

the waste generated at Nucor Steel; and

(2) the petitioned waste does not exhibit

any of the characteristics of ignitability,

corrosivity, reactivity, or toxicity. See 40

CFR 261.21, 261.22, 261.23, and 261.24,

respectively.

The total cumulative risk posed by the

waste is approximately 1.6×10 ¥5.

Although this value exceeds the Region

5 Delisting Program’s target risk level of

75902 Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules

1×10 ¥6 for delisting hazardous waste,

EPA believes that this risk is acceptable

because the estimated risk is almost

entirely associated with a single

contaminant/pathway which may be

evaluated in more than one way.

Furthermore, EPA has considered

cancer risks in the range of 1×10 ¥4 to

1× 10 ¥6 to be acceptable in other

programs and the Region 5 Delisting

Program has considered risks in this

range acceptable if there are reasons to

do so.

In this case, exposure to carcinogenic

arsenic through ingestion of

contaminated drinking water accounted

for almost all of the risk estimated from

disposal of the petitioned waste at a

Subtitle D landfill. If the POE target

concentration was set at the Safe

Drinking Water Act (SDWA) Maximum

Contaminant Level (MCL), the

maximum allowable waste leachate

concentration would be 0.96 mg/L TCLP

arsenic, over 60 times higher than the

maximum observed leachate

concentration in the waste. EPA’s July

1996 Soil Screening Guidance: User’s

Guide, EPA/540/R–96/018, states that

acceptable levels of contaminants in

soils for the ground-water pathway

could be derived from SDWA Maximum

Contaminant Level Goals or MCLs.

Given that the difference between the

MCL for arsenic and the health-based

POE concentration is three orders of

magnitude and that, according to EPA’s

May 2000 Technical Fact Sheet:

Proposed Rule for Arsenic in Drinking

Water and Clarifications to Compliance

and New Source Contaminants

Monitoring, EPA 815–F–00–011,

naturally occurring levels of arsenic are

often higher than these levels, we

believe that some allowance can be

exercised in setting the allowable level

for arsenic in the leachate. EPA

proposes to set the allowable arsenic

leachate level at a concentration which

corresponds to a total waste cancer risk

of 1×10 ¥4 (which is still within the

generally acceptable range of

1Qtimes10 ¥4 to ×10 ¥6). Delisting levels

for constituents other than arsenic will

still be set at concentrations

corresponding to the original Region 5

target of 1×10 ¥6. By this method, the

delisting level for leachable arsenic in

this proposed exclusion will be set at a

value which corresponds to a POE

concentration of approximately onetenth of the existing MCL. The EPA has

recently proposed to lower the arsenic

MCL to one-tenth its current value and

thus, if finalized, it would correspond

well with the delisting level we are

setting.

The aggregate hazard index for this

waste is estimated to be 0.965, which

does not exceed the EPA Region 5

Delisting Program’s target of 1.0. The

majority of this aggregate hazard index,

0.774, occurs as a result of migration of

mercury to surface water followed by

ingestion of fish by humans. For this

reason, a delisting level for total

mercury in the waste will also be

imposed. All other delisting levels

imposed in this exclusion are based on

the concentration of constituents in

leachate.

I. What Is EPA’s Final Evaluation of

This Delisting Petition?

We have reviewed the sampling

procedures used by Heritage and have

determined they satisfy EPA criteria for

collecting representative samples of the

treated EAFD. The descriptions of the

hazardous waste treatment process and

the analytical data, together with the

proposed verification testing

requirements, provide a reasonable basis

for EPA to grant the exclusion. We

believe the data submitted in support of

the petition show that the waste will not

pose a threat when disposed of in a

Subtitle D landfill. We therefore,

propose to grant Heritage an exclusion

for the EAFD generated at Nucor.

If we finalize this proposed exclusion,

the Agency will no longer regulate the

petitioned waste under 40 CFR Parts

262 through 268 and the permitting

standards of Part 270.

IV. Conditions for Exclusion

A. What Are the Maximum Allowable

Concentrations of Hazardous

Constituents in the Waste?

The following table summarizes

delisting levels for Nucor’s waste. The

EPA calculated maximum allowable

concentrations in the extract for

detected constituents using the DRAS

program. The allowable leachate

concentrations were derived either from

the health-based calculation within the

DRAS program, from MCLs, treatment

technique (TT), or toxicity characteristic

values, whichever resulted in a lower

delisting level, with the exception of

arsenic as discussed in Section III. H. of

this preamble. In addition, the

concentration of total mercury in the

waste shall not exceed 1 mg/kg.

TABLE 1.—CONSTITUENT CONCENTRATIONS AND DRAS MAXIMUM ALLOWABLE LEACHATE AND POINT OF EXPOSURE

LEVELS

Constituent

Maximum 1

Observed

Total

Concentration

(mg/kg)

Maximum 1

Observed

Leachate

Concentration

(mg/L TCLP)

Maximum

Allowable

Leachate

Concentration

(mg/L TCLP)

Maximum

Allowable

Point of

Exposure

Concentration

(mg/L in

groundwater)

Antimony .................................................................................................. <25 0.0082 2 0.206 2 0.006

Arsenic ..................................................................................................... 30 0.015 0.0936 0.005

Barium ...................................................................................................... 56 0.83 2 55.7 2 2.0

Beryllium .................................................................................................. 10 <0.002 2 0.416 2 0.004

Cadmium .................................................................................................. 130 <0.001 2 0.15 2 0.005

Chromium ................................................................................................ 2,880 0.11 2 1.55 2 0.1

Lead ......................................................................................................... 4,600 2.4 3 5 2 0.015

Mercury .................................................................................................... 0.72 <0.002 2 0.149 2 0.002

Nickel ....................................................................................................... 130 <0.020 28.3 0.753

Selenium .................................................................................................. 8.8 0.056 2 0.58 2 0.05

Silver ........................................................................................................ 47 0.023 3.84 0.187

Thallium ................................................................................................... <30 <0.05 2 0.088 2 0.002

Vanadium ................................................................................................. 160 <0.01 21.1 0.263

Zinc .......................................................................................................... 240,000 2.7 280 11.25

Cyanide .................................................................................................... <0.23 NR NA 2 0.2

Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules 75903

TABLE 1.—CONSTITUENT CONCENTRATIONS AND DRAS MAXIMUM ALLOWABLE LEACHATE AND POINT OF EXPOSURE

LEVELS—Continued

Constituent

Maximum 1

Observed

Total

Concentration

(mg/kg)

Maximum 1

Observed

Leachate

Concentration

(mg/L TCLP)

Maximum

Allowable

Leachate

Concentration

(mg/L TCLP)

Maximum

Allowable

Point of

Exposure

Concentration

(mg/L in

groundwater)

Sulfide ...................................................................................................... 31 NR NA NA

1These levels represent the highest constituent concentration found in any sample and are not necessarily the specific levels found in any one

sample. 2The concentration is based on the MCL or TT action level.

3The concentration is based on the toxicity characteristic level in 40 CFR 261.24.

< The constituent was not detected at the stated concentration.

NA Not applicable

NR Analysis not run.

B. How Frequently Must Heritage Test

the Waste?

Heritage must demonstrate on a

monthly basis that the constituents of

concern in the petitioned waste do not

exceed the levels of concern in section

IV.A. above. Heritage must collect two

representative samples of the treated

EAFD per month and analyze the

samples using a) the TCLP method, b)

the TCLP procedure with an extraction

fluid of pH 12 ± 0.05 standard units and

c) SW–846 Method 7470 for mercury.

The alkaline extraction fluid will

consist of reagent water to which high

calcium hydrated lime is added to reach

a pH of 12.0 ± 0.05. Appropriate

detection levels and quality control

procedures are required.

C. What Must Heritage Do if the Process

Changes?

If Nucor significantly changes the

manufacturing process or Heritage

significantly changes the treatment

process or the chemicals used in the

treatment process, Heritage may not

handle the EAFD generated from the

new process under this exclusion until

it has demonstrated to the EPA that the

waste meets the levels set in Section

IV.A and that no new hazardous

constituents listed in Appendix VIII of

40 CFR Part 261 have been introduced.

Heritage must manage wastes generated

after the process change as hazardous

waste until Heritage has received

written approval from EPA.

D. What Data Must Heritage Submit?

Heritage must submit an annual

summary of the data obtained through

monthly verification testing to U.S. EPA

Region 5, Waste Management Branch

(DW–8J), 77 W. Jackson Blvd., Chicago,

IL 60604, by February 1 of each year for

the prior calendar year. Heritage must

compile, summarize, and maintain on

site for a minimum of five years records

of operating conditions and analytical

data. Heritage must make these records

available for inspection. All data must

be accompanied by a signed copy of the

certification statement in 40 CFR

260.22(i)(12).

E. What Happens if Heritage Fails To

Meet the Conditions of the Exclusion?

If Heritage violates the terms and

conditions established in the exclusion,

the Agency may start procedures to

withdraw the exclusion.

If the monthly testing of the waste

does not meet the delisting levels

described in Section IV.A above,

Heritage must notify the Agency

according to Section IV.D. The

exclusion will be suspended and the

waste managed as hazardous until

Heritage has received written approval

for the exclusion from the Agency.

Heritage may provide sampling results

that support the continuation of the

delisting exclusion.

The EPA has the authority under

RCRA and the Administrative

Procedures Act, 5 U.S.C. 551 (1978) et

seq. (APA), to reopen a delisting

decision if we receive new information

indicating that the conditions of this

exclusion have been violated.

V. Regulatory Impact

Under Executive Order 12866, EPA

must conduct an ‘‘assessment of the

potential costs and benefits’’ for all

‘‘significant’’ regulatory actions.

The proposal to grant an exclusion is

not significant, since its effect, if

promulgated, would be to reduce the

overall costs and economic impact of

EPA’s hazardous waste management

regulations. This reduction would be

achieved by excluding waste generated

at a specific facility from EPA’s lists of

hazardous wastes, thus enabling a

facility to manage its waste as

nonhazardous.

Because there is no additional impact

from today’s proposed rule, this

proposal would not be a significant

regulation, and no cost/benefit

assessment is required. The Office of

Management and Budget (OMB) has also

exempted this rule from the requirement

for OMB review under Section (6) of

Executive Order 12866.

VI. Regulatory Flexibility Act

Under the Regulatory Flexibility Act,

5 U.S.C. 601–612, whenever an agency

is required to publish a general notice

of rulemaking for any proposed or final

rule, it must prepare and make available

for public comment a regulatory

flexibility analysis which describes the

impact of the rule on small entities (that

is, small businesses, small

organizations, and small governmental

jurisdictions). No regulatory flexibility

analysis is required, however, if the

Administrator or delegated

representative certifies that the rule will

not have any impact on small entities.

This rule, if promulgated, will not

have an adverse economic impact on

small entities since its effect would be

to reduce the overall costs of EPA’s

hazardous waste regulations and would

be limited to one facility. Accordingly,

the Agency certifies that this proposed

regulation, if promulgated, will not have

a significant economic impact on a

substantial number of small entities.

This regulation, therefore, does not

require a regulatory flexibility analysis.

VII. Paperwork Reduction Act

Information collection and recordkeeping requirements associated with

this proposed rule have been approved

by the Office of Management and

Budget (OMB) under the provisions of

the Paperwork Reduction Act of 1980

(Pub. L. 96–511, 44 U.S.C. 3501 et seq.)

and have been assigned OMB Control

Number 2050–0053.

75904 Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules

VIII. Unfunded Mandates Reform Act

Under section 202 of the Unfunded

Mandates Reform Act of 1995 (UMRA),

Public Law 104–4, which was signed

into law on March 22, 1995, EPA

generally must prepare a written

statement for rules with federal

mandates that may result in estimated

costs to state, local, and tribal

governments in the aggregate, or to the

private sector, of $100 million or more

in any one year.

When such a statement is required for

EPA rules, under section 205 of the

UMRA EPA must identify and consider

alternatives, including the least costly,

most cost-effective, or least burdensome

alternative that achieves the objectives

of the rule. EPA must select that

alternative, unless the Administrator

explains in the final rule why it was not

selected or it is inconsistent with law.

Before EPA establishes regulatory

requirements that may significantly or

uniquely affect small governments,

including tribal governments, EPA must

develop under section 203 of the UMRA

a small government agency plan. The

plan must provide for notifying

potentially affected small governments,

giving them meaningful and timely

input in the development of EPA

regulatory proposals with significant

federal intergovernmental mandates,

and informing, educating, and advising

them on compliance with the regulatory

requirements.

The UMRA generally defines a federal

mandate for regulatory purposes as one

that imposes an enforceable duty upon

state, local, or tribal governments or the

private sector.

The EPA finds that today’s delisting

decision is deregulatory in nature and

does not impose any enforceable duty

on any state, local, or tribal governments

or the private sector. In addition, the

proposed delisting decision does not

establish any regulatory requirements

for small governments and so does not

require a small government agency plan

under UMRA section 203.

IX. Executive Order 12875

Under Executive Order 12875, EPA

may not issue a regulation that is not

required by statute and that creates a

mandate upon a state, local, or tribal

government, unless the federal

government provides the funds

necessary to pay the direct compliance

costs incurred by those governments. If

the mandate is unfunded, EPA must

provide to the Office of Management

and Budget a description of the extent

of EPA’s prior consultation with

representatives of affected state, local,

and tribal governments, the nature of

their concerns, copies of written

communications from the governments,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 12875 requires EPA to

develop an effective process permitting

elected officials and other

representatives of state, local, and tribal

governments ‘‘to provide meaningful

and timely input in the development of

regulatory proposals containing

significant unfunded mandates.’’

Today’s rule does not create a mandate

on state, local or tribal governments.

The rule does not impose any

enforceable duties on these entities.

Accordingly, the requirements of

section 1(a) of Executive Order 12875 do

not apply to this rule.

X. Executive Order 13045

The Executive Order 13045 is entitled

‘‘Protection of Children from

Environmental Health Risks and Safety

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

This order applies to any rule that EPA

determines (1) is economically

significant as defined under Executive

Order 12866, and (2) the environmental

health or safety risk addressed by the

rule has a disproportionate effect on

children. If the regulatory action meets

both criteria, the Agency must evaluate

the environmental health or safety

effects of the planned rule on children,

and explain why the planned regulation

is preferable to other potentially

effective and reasonably feasible

alternatives considered by the Agency.

This proposed rule is not subject to

Executive Order 13045 because this is

not an economically significant

regulatory action as defined by

Executive Order 12866.

XI. Executive Order 13084

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly

affects or uniquely affects communities

of Indian tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments.

If the mandate is unfunded, EPA must

provide to the Office of Management

and Budget, in a separately identified

section of the preamble to the rule, a

description of the extent of EPA’s prior

consultation with representatives of

affected tribal governments, a summary

of the nature of their concerns, and a

statement supporting the need to issue

the regulation.

In addition, Executive Order 13084

requires EPA to develop an effective

process permitting elected and other

representatives of Indian tribal

governments ‘‘to meaningful and timely

input’’ in the development of regulatory

policies on matters that significantly or

uniquely affect their communities of

Indian tribal governments. This action

does not involve or impose any

requirements that affect Indian Tribes.

Accordingly, the requirements of

section 3(b) of Executive Order 13084

do not apply to this rule.

XII. National Technology Transfer and

Advancement Act

Under Section 12(d) of the National

Technology Transfer and Advancement

Act, the Agency is directed to use

voluntary consensus standards in its

regulatory activities unless doing so

would be inconsistent with applicable

law or otherwise impractical.

Voluntary consensus standards are

technical standards (for example,

materials specifications, test methods,

sampling procedures, business

practices, etc.) that are developed or

adopted by voluntary consensus

standard bodies. Where EPA does not

use available and potentially applicable

voluntary consensus standards, the Act

requires the Agency to provide

Congress, through the OMB, an

explanation of the reasons for not using

such standards.

This rule does not establish any new

technical standards, and thus the

Agency has no need to consider the use

of voluntary consensus standards in

developing this final rule.

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: November 8, 2000.

Willie H. Harris,

Acting Director, Waste, Pesticides and Toxics

Division.

For the reasons set out in the

preamble, 40 CFR Part 261 is proposed

to be amended as follows:

PART 261—IDENTIFICATION AND

LISTING OF HAZARDOUS WASTE

1. The authority citation for Part 261

continues to read as follows:

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

6922, and 6938.

Appendix IX of Part 261—[Amended]

2. In Table 2 of Appendix IX of Part

261 add the following waste stream in

alphabetical order by facility to read as

follows:

Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules 75905

Appendix IX to Part 261—Wastes

Excluded Under §§ 260.20 and 260.22

* * * * *

TABLE 2.—WASTES EXCLUDED FROM SPECIFIC SOURCES

Facility Address Waste description

*******

Heritage Environmental

Services, LLC., at Nucor

Steel.

Crawfordsville, Indiana .......... Treated electric arc furnace dust (EAFD), K061, that is generated by Heritage Environmental Services, LLC (Heritage) and Nucor Steel, Division of Nucor, Corporation (Nucor) at Nucor’s Crawfordsville, Indiana plant at a maximum annual

rate of 30,000 cubic yards per year and disposed of in a Subtitle D landfill, after

(insert publication date of the final rule).

(1) Delisting Levels:

(A) The constituent concentrations measured in either of the extracts specified in

Paragraph (2) may not exceed the following levels (mg/L): Antimony—0.206; Arsenic—0.0936; Barium—55.7; Beryllium—0.416; Cadmium—0.15; Chromium

(total)—1.55; Lead—5.0; Mercury—0.149; Nickel—28.30; Selenium—0.58; Silver—3.84; Thallium—0.088; Vanadium—21.1; Zinc—280.0.

(B) Total mercury may not exceed 1 mg/kg.

(2) Verification Testing: On a monthly basis, Heritage or Nucor must analyze two

samples of the waste using the TCLP method, the TCLP procedure with an extraction fluid of pH 12 ± 0.05 standard units and SW–846 Method 7470 for mercury. The constituent concentrations measured must be less than the delisting

levels established in Paragraph (1).

(3) Changes in Operating Conditions: If Nucor significantly changes the manufacturing process or chemicals used in the manufacturing process or Heritage significantly changes the treatment process or the chemicals used in the treatment

process, Heritage or Nucor must notify the EPA of the changes in writing. Heritage and Nucor must handle wastes generated after the process change as hazardous until Heritage or Nucor has demonstrated that the wastes continue to

meet the delisting levels set forth in Paragraph (1) and that no new hazardous

constituents listed in Appendix VIII of Part 261 have been introduced and Heritage and Nucor have received written approval from EPA.

(4) Data Submittals: Heritage must submit the data obtained through monthly

verification testing or as required by other conditions of this rule to U.S. EPA

Region 5, Waste Management Branch (DW–8J), 77 W. Jackson Blvd., Chicago,

IL 60604 by February 1 of each calendar year for the prior calendar year. Heritage or Nucor must compile, summarize, and maintain on site for a minimum of

five years records of operating conditions and analytical data. Heritage or Nucor

must make these records available for inspection. All data must be accompanied by a signed copy of the certification statement in 40 CFR 260.22(i)(12).

(5) Reopener Language—(A) If, anytime after disposal of the delisted waste, Heritage or Nucor possesses or is otherwise made aware of any data (including but

not limited to leachate data or groundwater monitoring data) relevant to the

delisted waste indicating that any constituent identified in Paragraph (1) is at a

level in the leachate higher than the delisting level established in Paragraph (1),

or is at a level in the groundwater higher than the maximum allowable point of

exposure concentration predicted by the CMTP model, then Heritage or Nucor

must report such data, in writing, to the Regional Administrator within 10 days of

first possessing or being made aware of that data.

(B) Based on the information described in paragraph (5)(A) and any other information received from any source, the Regional Administrator will make a preliminary determination as to whether the reported information requires Agency action to protect human health or the environment. Further action may include

suspending, or revoking the exclusion, or other appropriate response necessary

to protect human health and the environment.

(C) If the Regional Administrator determines that the reported information does require Agency action, the Regional Administrator will notify Heritage and Nucor in

writing of the actions the Regional Administrator believes are necessary to protect human health and the environment. The notice shall include a statement of

the proposed action and a statement providing Heritage and Nucor with an opportunity to present information as to why the proposed Agency action is not

necessary or to suggest an alternative action. Heritage and Nucor shall have 30

days from the date of the Regional Administrator’s notice to present the information.

(D) If after 30 days Heritage or Nucor presents no further information, the Regional Administrator will issue a final written determination describing the Agency actions that are necessary to protect human health or the environment. Any

required action described in the Regional Administrator’s determination shall become effective immediately, unless the Regional Administrator provides otherwise.

75906 Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules

TABLE 2.—WASTES EXCLUDED FROM SPECIFIC SOURCES—Continued

Facility Address Waste description

*******

* * * * *

[FR Doc. 00–29647 Filed 12–4–00; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

INDIAN HEALTH SERVICE

42 CFR Part 36

Joint Tribal and Federal SelfGovernance Negotiated Rulemaking

Committee

AGENCY: Indian Health Service (IHS),

Department of Health and Human

Services (DHHS).

ACTION: Notice of intent to establish

negotiated rulemaking committee.

SUMMARY: As required by section 3 of

the Negotiated Rulemaking Act of 1990,

5 U.S.C. 564, the Department of Health

and Human Services, (DHHS) is giving

notice of the intent to establish a Joint

Tribal and Federal Self-Governance

Negotiated Rulemaking Committee

(Committee) to negotiate and develop a

proposed rule implementing Title V of

the Tribal Self-Governance

Amendments of 2000; Public Law 106–

260, (the Act). DHHS invites any

interested party to comment on the

proposal to create this negotiated

rulemaking committee and on the

proposed membership of the committee,

which is subject to the requirements of

the Act. In addition, DHHS invites

persons who believe that they will be

significantly affected by the proposed

rule to apply or nominate other persons

for membership on the negotiated

rulemaking committee.

DATES: Written comments concerning

this notice must be received on or before

January 4, 2001. Nominations or

applications for membership on the

committee may be made by submitting

applications on or before January 4,

2001. Each application must contain the

information described in the

‘‘Application for Membership’’ section

below.

ADDRESSES: Please submit comments

and applications to: Paula K. Williams,

Director, Office of Tribal SelfGovernance, Indian Health Service,

5600 Fishers Lane, Room 5A–55,

Rockville, MD 20857. Comments and

applications received will be available

for inspection at the address above from

9:00 a.m. to 3:00 p.m., Monday through

Friday, beginning approximately two

weeks after publication of this notice.

FOR FURTHER INFORMATION CONTACT:

Paula K. Williams, Director, Office of

Tribal Self-Governance, Indian Health

Service, at the address listed above, or

by telephone at 301–443–7821. (This is

not a toll free number).

SUPPLEMENTARY INFORMATION: Section

517 of Title V of the Act, requires the

Secretary, not later than 90 days after

the date of the enactment of the Act, to

initiate procedures under the Negotiated

Rulemaking Act, 5 U.S.C. 561 et seq. to

negotiate and promulgate the

regulations necessary to carry out Title

V. The Act calls for a negotiated

rulemaking committee to be established

pursuant to 5 U.S.C. 565, comprised

only of Federal and tribal

representatives, with a majority of the

tribal government representatives

representing Self-Governance tribes.

The Committee will confer with and

allow representatives of Indian tribes,

inter-tribal consortiums, tribal

organizations, and individual tribal

members to actively participate in the

rulemaking process. The Act also

authorizes the Secretary to adapt

negotiated rulemaking procedures to the

unique context of Self-Governance and

the government-to-government

relationship between the United States

and Indian tribes.

Copies of the Committee’s charter will

be filed with the appropriate

committees of Congress and with the

Library of Congress in accordance with

section 9(c) of the Federal Advisory

Committee Act, (FACA), 5 U.S.C.

Appendix.

Scope of the Proposed Rule

The proposed rule generally will

include provisions governing how

DHHS/IHS carries out its responsibility

to tribes under the Act and how tribes

carry out their responsibility under the

Act. Because of the detailed provisions

contained in the Act, it is anticipated

that regulations can be kept to a

minimum. Examples of some areas

where procedures may be required are

for regulations waivers, appeals of

rejection of final offers, or where

regulations would be required, such as

under sec. 507(a) which specifies that

reporting requirements can only impose

minimal burdens on a tribe and may

only be imposed if they are contained in

regulations developed under negotiated

rulemaking. It is anticipated that the

negotiated rulemaking committee will

develop proposed regulations in any

other areas that may be suggested during

the process.

Interests Significantly Affected

A limited number of identifiable

interests will be significantly affected by

the rule. Those parties are Indian tribes,

tribal organizations as defined in section

4(1) of the Indian Self-Determination

and Education Assistance Act, and

individual tribal members.

Proposed Agenda and Schedule for

Publication of Proposed Rule

It is the Secretary’s intent to publish

the proposed rule for notice and

comment no later than 1 year after the

date of the enactment of the Act (August

18, 2000 + 1 year), as required by

section 517(a)(2) of the Act.

The charter will specify that a

minimum of three meetings will be

held. The first meeting will serve as an

organizational meeting to establish

procedures, deadlines and a work

schedule in order for the 12–month time

period to be met.

Negotiated Procedures

The following procedures and

guidelines will apply to the negotiated

rulemaking committee, unless they are

modified as a result of comments

received on this notice or during the

negotiation process.

The committee may use a neutral

facilitator. The facilitator will not be

involved with the substantive

development or enforcement of the

regulation. The facilitator’s role is to

help the negotiation process run

smoothly, and help participants define

and reach consensus.

The members of the committee, with

the assistance of the facilitator, may

adopt procedures for committee

meetings which they consider most

appropriate.

The goal of the negotiating process is

for the committee to reach consensus on

the proposed rule. Consensus means

unanimous concurrence among the

interests represented unless the

committee agrees to define such term to

mean general but not unanimous