Federal Register / Vol. 75, No. 61 / Wednesday, March 31, 2010 / Proposed Rules 16037 

contribution to nonattainment of the 

1997 8-hour ozone NAAQS in any other 

state. At a later date, EPA will act on the 

language and demonstration addressing 

element (2): prohibition of interference 

with maintenance of the 1997 8-hour 

ozone NAAQS in any other state. 

VII. Statutory and Executive Order 

Review 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves state law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Volatile Organic 

Compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: March 18, 2010. 

Carol L. Campbell, 

Acting Deputy Regional Administrator, 

Region 8. 

[FR Doc. 2010–6893 Filed 3–30–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 261 

[EPA–R06–RCRA–2009–0549; SW–FRL– 

9131–6] 

Hazardous Waste Management 

System; Identification and Listing of 

Hazardous Waste; Proposed Exclusion 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule and request for 

comment. 

SUMMARY: EPA is proposing to grant a 

petition submitted by Tokusen USA, 

Inc. (called just Tokusen hereinafter) to 

exclude (or delist) a wastewater 

treatment plant (WWTP) sludge filter 

cake (called just sludge hereinafter) 

generated by Tokusen in Conway, AR 

from the lists of hazardous wastes. EPA 

used the Delisting Risk Assessment 

Software (DRAS) in the evaluation of 

the impact of the petitioned waste on 

human health and the environment. 

EPA bases its proposed decision to 

grant the petition on an evaluation of 

waste-specific information provided by 

the petitioner. This proposed decision, 

if finalized, would exclude the 

petitioned waste from the requirements 

of hazardous waste regulations under 

the Resource Conservation and 

Recovery Act (RCRA). 

If finalized, EPA would conclude that 

Tokusen’s petitioned waste is nonhazardous with respect to the original 

listing criteria. EPA would also 

conclude that Tokusen’s process 

minimizes short-term and long-term 

threats from the petitioned waste to 

human health and the environment. 

DATES: We will accept comments until 

April 30, 2010. We will stamp 

comments postmarked after the close of 

the comment period as ‘‘late.’’ These 

‘‘late’’ comments may not be considered 

in formulating a final decision. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

RCRA–2009–0549 by one of the 

following methods: 

1. Federal e-Rulemaking Portal: 

http://www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. E-mail: kim.youngmoo@epa.gov. 

3. Mail: Youngmoo Kim, 

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: Youngmoo Kim, 

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–2009– 

0549. 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 

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 


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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 are available 

either electronically in http:// 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

RCRA Branch, 1445 Ross Avenue, 

Dallas, TX 75202. The hard copy RCRA 

regulatory docket for this proposed rule, 

EPA–R06–RCRA–2009–0549, is 

available for viewing from 9 a.m. to 4 

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 

Tokusen, contact Youngmoo Kim at 

214–665–6788 or by e-mail at 

kim.youngmoo@epa.gov. 

Your requests for a hearing must 

reach EPA by April 15, 2010. The 

request must contain the information 

described in § 260.20(d). 

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 Tokusen Manage the Waste, 

if It Is Delisted? 

D. When Would the Proposed Delisting 

Exclusion Be Finalized? 

E. How Would This Action Affect States? 

II. Background 

A. What Is the History of the Delisting 

Program? 

B. What Is a Delisting Petition, and What 

Does It Require of a Petitioner? 

C. What Factors Must EPA Consider in 

Deciding Whether To Grant a Delisting 

Petition? 

III. EPA’s Evaluation of the Waste 

Information and Data 

A. What Waste Did Tokusen Petition EPA 

To Delist? 

B. Who Is Tokusen and What Process Does 

It Use To Generate the Petitioned Waste? 

C. How Did Tokusen Sample and Analyze 

the Data in This Petition? 

D. What Were the Results of Tokusen’s 

Analyses? 

E. How Did EPA Evaluate the Risk of 

Delisting This Waste? 

F. What Did EPA Conclude About 

Tokusen’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 Tokusen Violates the 

Terms and Conditions? 

V. Public Comments 

A. How May I as an Interested Party 

Submit Comments? 

B. How May I Review the Docket or Obtain 

Copies of the Proposed Exclusion? 

VI. Statutory and Executive Order Reviews 

I. Overview Information 

A. What Action Is EPA Proposing? 

EPA is proposing: 

(1) To grant Tokusen’s delisting 

petition to have its WWTP sludge 

excluded, or delisted, from the 

definition of a hazardous waste; and 

subject to certain verification and 

monitoring conditions. 

(2) To use the Delisting Risk 

Assessment Software (DRAS) to 

evaluate the potential impact of the 

petitioned waste on human health and 

the environment. The Agency used this 

model to predict the concentration of 

hazardous constituents released from 

the petitioned waste, once it is 

disposed. 

B. Why Is EPA Proposing To Approve 

This Delisting? 

Tokusen’s petition requests an 

exclusion from the F006 waste listing 

pursuant to 40 CFR 260.20 and 260.22. 

Tokusen does not believe that the 

petitioned waste meets the criteria for 

which EPA listed it. Tokusen 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 

§ 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 

Tokusen is based on the information 

submitted in support of this rule, 

including descriptions of the wastes and 

analytical data from the Conway, AR 

facility. 

C. How Will Tokusen Manage the Waste, 

if It Is Delisted? 

If the sludge is delisted, the WWTP 

sludge from Tokusen will be disposed at 

a RCRA Subtitle D landfill: The Waste 

Management Industrial Landfill, North 

Little Rock, Arkansas. 

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). 


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E. How Would This Action Affect 

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 

Tokusen transports the petitioned waste 

to or manages the waste in any state 

with delisting authorization, Tokusen 

must 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 

§ 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 § 261.3(a)(2)(iv) or (c)(2)(i), 

known as the ‘‘mixture’’ or ‘‘derivedfrom’’ 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 section 3001(f) of 

RCRA, 42 U.S.C. 6921(f), and in the 

background documents for the listed 

wastes, EPA must consider any factors 

(including additional constituents) other 

than those for which EPA listed the 

waste, if a reasonable basis exists 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 § 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 Tokusen Petition 

EPA To Delist? 

On March 25, 2009, Tokusen 

petitioned EPA to exclude from the lists 

of hazardous wastes contained in 

§ 261.31, WWTP sludge (F006) 

generated from its facility located in 

Conway, Arkansas. The waste falls 

under the classification of listed waste 

pursuant to § 261.31. Specifically, in its 

petition, Tokusen requested that EPA 

grant a standard exclusion for 2,000 

cubic yards per year of the WWTP 

sludge. 

B. Who Is Tokusen and What Process 

Does It Use To Generate the Petitioned 

Waste? 

The Tokusen USA, Inc. facility 

produces high-carbon steel tire cord for 

use in radial tire manufacturing. The 

steel cord is produced from steel rod 

which has been reduced in size and 

electroplated with copper and zinc to 

produce a brass coating. The facility 

generates F006 filter cake by the 

dewatering of wastewater sludge 

generated at the on-site wastewater 

treatment plants. This waste is stored 

on-site less than 90 days and is then 

transported from the site to the RCRA 

Subtitle C facility, Chemical Waste 

Management in Sulphur, LA 70556. 

C. How Did Tokusen Sample and 

Analyze the Data in This Petition? 

To support its petition, Tokusen 

submitted: 

(1) Historical information on waste 

generation and management practices; 

(2) Analytical results from four 

samples for total concentrations of 

compounds of concern (COCs); 

(3) Analytical results from four 

samples for Toxicity Characteristic 

Leaching Procedure (TCLP) extract 

values of COCs; and 

(4) Multiple pH testing for the 

petitioned waste. 

D. What Were the Results of Tokusen’s 

Analyses? 

EPA believes that the descriptions of 

the Tokusen analytical characterization 

provide a reasonable basis to grant 

Tokusen’s petition for an exclusion of 

the WWTP sludge. EPA believes the 

data submitted in support of the petition 

show the WWTP sludge is nonhazardous. Analytical data for the 


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WWTP sludge samples included in the 

March 2009 petition 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 Tokusen 

and has determined that it satisfies EPA 

criteria for collecting representative 

samples of the variations in constituent 

concentrations in the WWTP sludge. In 

addition, the data submitted in support 

of the petition show that constituents in 

Tokusen’s waste are presently below 

health-based levels used in the delisting 

decision-making. EPA believes that 

Tokusen has successfully demonstrated 

that the WWTP sludge is nonhazardous. 

ANALYTICAL RESULTS/MAXIMUM ALLOWABLE DELISTING CONCENTRATION

[Wastewater treatment sludge; Tokusen, Conway, Arkansas] 

Constituents Maximum total 

(mg/kg) 

Maximum TCLP 

(mg/L) 

Maximum allowable TCLP 

delisting level 

(mg/L) 

Antimony ................................................................................................................................ 11.9 <0.3 0.4 

Arsenic ................................................................................................................................... 26.3 J 0.12 1.59 

Barium .................................................................................................................................... 111 0.313 (100) 

Chromium .............................................................................................................................. 38.9 <0.02 (5.0) 

Cobalt ..................................................................................................................................... <9.69 0.059 0.8 

Copper ................................................................................................................................... 4090 30 91.3 

Lead ....................................................................................................................................... 334 0.06 2.32 

Nickel ..................................................................................................................................... 35.6 0.774 50.5 

Selenium ................................................................................................................................ 253 0.21 (1.0) 

Acetone .................................................................................................................................. 0.0293 BJ 0.0429 1950 

Zinc ........................................................................................................................................ 26400 553 748 

Notes: 

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

found in one sample. 

2. The delisting levels are from the DRAS analyses except the chemical concentrations with a parenthesis which are the TCLP regulatory levels. 

3. J: Estimated Value. 

E. How Did EPA Evaluate the Risk of 

Delisting This 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 landfill is the most 

reasonable, worst-case disposal scenario 

for Tokusen’s petitioned waste. EPA 

applied the Delisting Risk Assessment 

Software (DRAS) described in 65 FR 

58015 (September 27, 2000), 65 FR 

75637 (December 4, 2000), and 73 FR 

28768 (May 19, 2008) to predict the 

maximum allowable concentrations of 

hazardous constituents that may be 

released from the petitioned waste after 

disposal and determined the potential 

impact of the disposal of Tokusen’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 landfill, and that a reasonable 

worst-case scenario is appropriate when 

evaluating whether a waste should be 

relieved of the protective management 

constraints of RCRA Subtitle C. The use 

of some reasonable worst-case scenarios 

resulted in conservative values for the 

compliance-point concentrations and 

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 landfill). 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 sitespecific 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 


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because no constituents of concern 

tested are likely to be present or formed 

as reaction products or by-products in 

Tokusen waste. 

F. What Did EPA Conclude About 

Tokusen’s Analysis? 

EPA concluded, after reviewing 

Tokusen’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 

Tokusen, pursuant to § 260.22, EPA 

concludes that the petitioned waste do 

not exhibit any of the characteristics of 

ignitability, corrosivity, reactivity or 

toxicity. See §§ 261.21, 261.22 and 

261.23, respectively. 

G. What Other Factors Did EPA 

Consider in Its Evaluation? 

During the evaluation of Tokusen’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 

Tokusen’s petitioned waste is unlikely. 

Therefore, no appreciable air releases 

are likely from Tokusen’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 Tokusen’s 

waste in an open landfill. The results of 

this worst-case analysis indicated that 

there is no substantial present or 

potential hazard to human health and 

the environment from airborne exposure 

to constituents from Tokusen’s WWTP 

waste. 

H. What Is EPA’s Evaluation of This 

Delisting Petition? 

The descriptions of Tokusen’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 Tokusen’s 

waste, F006 from copper and zinc 

electroplating process to produce a brass 

coating will not impose any threat to 

human health and the environment. 

Thus, EPA believes Tokusen should 

be granted an exclusion for the WWTP 

sludge. EPA believes the data submitted 

in support of the petition show 

Tokusen’s WWTP sludge is nonhazardous. The data submitted in 

support of the petition show that 

constituents in Tokusen’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 Tokusen has 

successfully demonstrated that the 

WWTP sludge is non-hazardous. 

EPA therefore, proposes to grant an 

exclusion to Tokusen in Conway, 

Arkansas, for the WWTP sludge 

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 WWTP 

sludge. 

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. Tokusen must 

comply with the LDR requirements 

before disposing of the delisted waste 

because the LDR attaches at the point of 

generation of the waste. The delisting, if 

granted, will absolve the generator from 

his obligation of handling the waste as 

hazardous. The appropriate waste code 

for this waste is F006. The LDR 

treatment standard for F006 is found in 

40 CFR 268.40. 

IV. Next Steps 

A. With What Conditions Must the 

Petitioner Comply? 

The petitioner, Tokusen, 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 Tokusen must 

test the WWTP sludge, below which 

these wastes would be considered nonhazardous. 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 Tokusen’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 Tokusen manages and 

disposes of any WWTP sludge that 

contains hazardous levels of inorganic 

and organic constituents according to 

Subtitle C of RCRA. Managing the 

WWTP sludge 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: 

Tokusen must complete a rigorous 

verification testing program on the 

WWTP sludge 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 WWTP 

sludge 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 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, 

Tokusen may request quarterly testing. 

EPA will notify Tokusen 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 WWTP 

sludge for all constituents specified in 

paragraph (1) of the exclusion language. 

EPA believes that the concentrations of 

the constituents of concern in the 

WWTP sludge may vary over time. 

Consequently this program will ensure 

that the sludge is evaluated in terms of 

variation in constituent concentrations 

in the waste over time. 

The proposed subsequent testing 

would verify that Tokusen operates a 

treatment facility where the constituent 

concentrations of the WWTP sludge do 

not exhibit unacceptable temporal and 

spatial levels of toxic constituents. EPA 

is proposing to require Tokusen to 

analyze representative samples of the 

WWTP sludge quarterly during the first 

year of waste generation. Tokusen 

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 


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the first year, if Tokusen has 

demonstrated that the waste 

consistently meets the delisting levels. 

To confirm that the characteristics of the 

waste do not change significantly over 

time, Tokusen 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; Tokusen must 

reinstate all testing in paragraph (1) of 

the exclusion language. Tokusen 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), Tokusen 

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 Tokusen the 

flexibility of modifying its processes (for 

example, changes in equipment or 

change in operating conditions) to 

improve its treatment process. However, 

Tokusen must prove the effectiveness of 

the modified process and request 

approval from EPA. Tokusen 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 Tokusen’s WWTP 

sludge is meeting the delisting levels, 

Tokusen 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 

Tokusen furnish these data upon 

request for inspection by any employee 

or representative of EPA or the State of 

Arkansas. 

If the proposed exclusion is made 

final, it will apply only to 2,000 cubic 

yards per year of wastewater treatment 

sludge generated at Tokusen after 

successful verification testing. 

EPA would require Tokusen to file a 

new delisting petition under any of the 

following circumstances: 

(a) If it significantly alters the 

manufacturing process treatment system 

except as described in paragraph (4) of 

the exclusion language; 

(b) If it uses any new manufacturing 

or production process(es), or 

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. 

Tokusen must manage waste volumes 

greater than 2,000 cubic yards per year 

of WWTP waste as hazardous until EPA 

grants a new exclusion. When this 

exclusion becomes final, Tokusen’s 

management of the wastes covered by 

this petition would be relieved from 

Subtitle C jurisdiction, and the WWTP 

sludge from Tokusen will be disposed to 

the RCRA Subtitle D landfill of Waste 

Management Industrial Subtitle D 

landfill in North Little Rock, AR. 

(6) Re-opener: 

The purpose of paragraph (6) of the 

exclusion language is to require 

Tokusen 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. Tokusen 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 

Tokusen 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 § 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 Tokusen provide a onetime notification to any state regulatory 

agency through which or to which the 

delisted waste is being carried. Tokusen 

must provide this notification 60 days 

before commencing this activity. 

B. What Happens if Tokusen Violates 

the Terms and Conditions? 

If Tokusen 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 

Tokusen to conduct the appropriate 

waste analysis and comply with the 

criteria explained above in paragraph (1) 

of the exclusion. 

V. Public Comments 

A. How May I as an Interested Party 

Submit Comments? 

EPA is requesting public comments 

on this proposed decision. Please send 

three copies of your comments. Send 

two copies to 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. Send a third copy 

to the Hazardous Waste Division, 

Arkansas Department of Environmental 

Quality, P.O. Box 8913, Little Rock, AR 

72118. Identify your comments at the 

top with this regulatory docket number: 

‘‘EPA–R06–RCRA–2009–0549.’’ You 

may submit your comments 

electronically to Youngmoo Kim at 

kim.youngmoo@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 


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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. 

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 

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. 

Executive Order (EO) 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. The Agency’s risk 

assessment did not identify risks from 

management of this material in a 

Subtitle D landfill. Therefore, EPA does 

not believe that any populations in 

proximity of the landfills used by this 

facility should not be adversely affected 

by common waste management 

practices for this delisted waste. 

Lists of Subjects in 40 CFR Part 261 

Environmental protection, Hazardous 

Waste, Recycling, Reporting and 

recordkeeping requirements. 

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

6921(f). 

Dated: March 17, 2010. 

Susan Spalding, 

Acting 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 Table 1 of Appendix IX of part 

261 add the following waste stream in 

alphabetical order by facility to read as 

follows: 


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Appendix IX to Part 261—Waste 

Excluded Under § 260.20 and 260.22 

TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES

Facility Address Waste description 

* * * * * * * 

Tokusen, USA Inc ...... Conway AR ............... Wastewater Treatment Sludge (EPA Hazardous Waste No. F006) generated at a maximum annual rate of 2,000 cubic yards per calendar year after [insert publication date of the final rule] 

will be disposed in Subtitle D landfill. 

For the exclusion to be valid, Tokusen must implement a verification testing program that 

meets the following paragraphs: 

(1) Delisting Levels: All leachable concentrations for those constituents must not exceed the 

following levels (mg/l for TCLP). (A) Inorganic Constituents: Antimony—0.4; Arsenic—1.59; 

Barium—100; Chromium—5.0; Cobalt—0.8; Copper—91.3; Lead—2.32; Nickel—50.5; Selenium—1.0; Zinc—748. (B) Organic Constituents: Acetone—1950. 

(2) Waste Management: (A) Tokusen must manage as hazardous all WWTP sludge generated, 

until it has completed initial verification testing described in paragraph (3)(A) and (B), as appropriate, and valid analyses show that paragraph (1) is satisfied and approval is received by 

EPA. (B) Levels of constituents measured in the samples of the WWTP sludge that do not 

exceed the levels set forth in paragraph (1) are non-hazardous. Tokusen can manage and 

dispose of the non-hazardous WWTP sludge according to all applicable solid waste regulations. (C) If constituent levels in a sample exceed any of the Delisting Levels set in paragraph (1) Tokusen can collect one additional sample and perform expedited analyses to 

verify if the constituent exceeds the delisting level. If this sample confirms the exceedance, 

Tokusen must, from that point forward, treat all the waste covered by this exclusion as hazardous until it is demonstrated that the waste again meets the levels in paragraph (1). 

Tokusen must manage and dispose of the waste generated under Subtitle C of RCRA from 

the time that it becomes aware of any exceedance. (D) Upon completion of the verification 

testing described in paragraph 3(A) and (B) as appropriate and the transmittal of the results 

to EPA, and if the testing results meet the requirements of paragraph (1), Tokusen may proceed to manage its WWTP sludge as non-hazardous waste. If subsequent Verification Testing indicates an exceedance of the Delisting Levels in paragraph (1), Tokusen must manage 

the WWTP sludge as a hazardous waste after it has received approval from EPA as described in paragraph (2)(C). 

(3) Verification Testing Requirements: Tokusen must perform sample collection and analyses, 

including quality control procedures, using 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 8260B, 1311/8260B, 8270C, 6010B, 7470, 9034A, 

ASTMD–4982B, ASTMD–5049, E413.2. Methods must meet Performance Based Measurement System Criteria in Which The Data Quality Objectives are to demonstrate that representative samples of sludge meet the delisting levels in paragraph (1). If EPA judges the 

process to be effective under the operating conditions used during the initial verification testing, Tokusen may replace the testing required in paragraph (3)(A) with the testing required in 

paragraph (3)(B). Tokusen must continue to test as specified in paragraph (3)(A) until and 

unless notified by EPA in writing that testing in paragraph (3)(A) may be replaced by paragraph (3)(B). (A) Initial Verification Testing: After EPA grants the final exclusion, Tokusen 

must do the following: (i) Within 60 days of this exclusion becoming final, collect eight samples, before disposal, of the WWTP sludge. (ii) The samples are to be analyzed and compared against the Delisting Levels in paragraph (1). (iii) Within sixty (60) days after this exclusion becomes final, Tokusen will report initial verification analytical test data for the 

WWTP sludge, including analytical quality control information for the first thirty (30) days of 

operation after this exclusion becomes final. Tokusen must request in writing that EPA allow 

Tokusen to substitute the testing conditions in (3)(B) for (3)(A). (B) Subsequent Verification 

Testing: Following written notification by EPA, Tokusen may substitute the testing conditions 

in (3)(B) for (3)(A). Tokusen must continue to monitor operating conditions, and analyze two 

representative samples of the wastewater treatment sludge for each quarter of operation during the first year of waste generation. The samples must represent the waste generated during the quarter. If levels of constituents measured in the samples of the WWTP sludge that 

do not exceed the levels set forth in paragraph (1) in two consecutive quarters after this exclusion become effective, Tokusen can manage and dispose of the WWTP sludge according 

to all applicable solid waste regulations. After the first year of analytical sampling verification 

sampling can be performed on a single annual sample of the wastewater treatment sludge. 

The results are to be compared to the Delisting Levels in paragraph (1). (C) Termination of 

Testing: (i) After the first year of quarterly testing, if the Delisting Levels in paragraph (1) are 

met, Tokusen may then request in writing that EPA not require quarterly testing. (ii) Following cancellation of the quarterly testing, Tokusen must continue to test a representative 

sample for all constituents listed in paragraph (1) annually. 


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TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued 

Facility Address Waste description 

(4) Changes in Operating Conditions: If Tokusen significantly changes the process described in 

its petition or starts any processes that generate(s) the waste that may or could significantly 

affect the composition or type of waste generated as established under paragraph (1) (by illustration, but not limitation, changes in equipment or operating conditions of the treatment 

process), it must notify EPA in writing; it may no longer handle the wastes generated from 

the new process as non-hazardous until the wastes meet the delisting Levels set in paragraph (1) and it has received written approval to do so from EPA. 

(5) Data Submittals: Tokusen must submit the information described below. If Tokusen 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. Tokusen must: (A) Submit the data obtained through 

paragraph(3) to the Section Chief, Corrective Action and Waste Minimization Section, EPA 

Region 6, 1445 Ross Avenue, Dallas, Texas 75202–2733, Mail Code, (6PD–C) within the 

time specified. (B) Compile records of operating conditions and analytical data from paragraph (3), summarized, and maintained on-site for a minimum of five years. (C) Furnish 

these records and data when EPA or the state of Arkansas 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 can not 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) Re-Opener: (A) If, any time after disposal of the delisted waste, Tokusen possesses or is 

otherwise made aware of any environmental data (including but not limited to leachate data 

or groundwater monitoring data) or any other data relevant to the delisted waste indicating 

that any constituent identified 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 the annual testing of the waste does not meet the delisting 

requirements in paragraph (1), Tokusen 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 Tokusen 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 does require action, EPA’s 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 action by EPA is not necessary. The facility shall have 10 

days from the date of the Division Director’s notice to present such information. (E) Following 

the receipt of information from the facility described in paragraph (6)(D) or (if) no information 

is presented under paragraph(6)(D)) the initial receipt of information described in paragraphs 

(5), (6)(A) or (6)(B), the Division Director will issue a final written determination describing 

EPA’s 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: Tokusen must do the following before transporting the delisted 

waste. Failure to provide this notification will result in a violation of the delisting petition and 

a possible revocation of the decision. (A) Provide a one-time written notification to any state 

Regulatory Agency to which or through which it will transport the delisted waste described 

above for disposal, 60 days before beginning such activities. (B) Update one-time written notification, if it ships the delisted waste into a different disposal facility. (C) Failure to provide 

this notification will result in a violation of the delisting variance and a possible revocation of 

the decision. 

* * * * * * * 


sroberts on DSKD5P82C1PROD with NOTICES
16046 Federal Register / Vol. 75, No. 61 / Wednesday, March 31, 2010 / Proposed Rules 

[FR Doc. 2010–7037 Filed 3–30–10; 8:45 am] 

BILLING CODE 6560–50–P?≤ 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS-R8-ES-2009-0019] 

[MO 92210-0-0008 B2] 

RIN 1018-AV91 

Endangered and Threatened Wildlife 

and Plants; Listing Casey’s June 

Beetle as Endangered and Designation 

of Critical Habitat 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; reopening of 

comment period, notice of availability 

of draft economic analysis, and 

amended required determinations. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

reopening of the comment period on our 

July 9, 2009, proposed listing and 

critical habitat designation for Casey’s 

June beetle (Dinacoma caseyi) under the 

Endangered Species Act of 1973, as 

amended (Act). We also announce the 

availability of the draft economic 

analysis (DEA), and an amended 

required determinations section of the 

proposal. We are reopening the 

comment period for an additional 30 

days to allow all interested parties an 

opportunity to comment simultaneously 

on the proposed listing and critical 

habitat designation, the DEA, and the 

amended required determinations 

section. If you submitted comments 

previously, you do not need to resubmit 

them because we have already 

incorporated them into the public 

record and will fully consider them in 

preparation of the final rule. 

DATES: We will consider comments that 

we receive on or before April 30, 2010. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments to 

Docket No. FWS–R8–ES–2009–0019. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R8– 

ES–2009–0019; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 

FOR FURTHER INFORMATION CONTACT: Jim 

Bartel, Field Supervisor, U.S. Fish and 

Wildlife Service, Carlsbad Fish and 

Wildlife Office, 6010 Hidden Valley 

Road, Suite 101, Carlsbad, CA 92011; 

telephone (760) 431–9440; facsimile 

(760) 431–5901. If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

Relay Service (FIRS) at (800) 877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We intend that any final action 

resulting from the proposed rule will be 

based on the best scientific data 

available and will be as accurate and as 

effective as possible. Therefore, we 

request comments or information from 

the public, other concerned government 

agencies, the scientific community, 

industry, or other interested party 

during this reopened comment period 

on the proposed rule to list the Casey’s 

June beetle (Dinacoma caseyi) with 

critical habitat that was published in the 

Federal Register on July 9, 2009 (74 FR 

32857), including the DEA of the 

proposed critical habitat designation 

and the amended required 

determinations section provided in this 

document. We are particularly 

interested in comments concerning: 

(1) Any available information on 

known or suspected threats and 

proposed or ongoing projects with the 

potential to threaten Casey’s June beetle, 

specifically: 

(a) The present or threatened 

destruction, modification or curtailment 

of its habitat or range; 

(b) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(c) Disease or predation; 

(d) The inadequacy of existing 

regulatory mechanisms; and 

(e) Other natural or manmade factors 

affecting its continued existence. 

(2) Additional information concerning 

the range, distribution, and population 

size of this species, including the 

locations of any additional populations 

of this species. 

(3) The reasons why we should or 

should not designate habitat as ‘‘critical 

habitat’’ under section 4 of the 

Endangered Species Act of 1973, as 

amended (Act; 16 U.S.C. 1531 et seq.), 

including whether there are threats to 

Casey’s June beetle from human activity, 

the degree of which can be expected to 

increase due to the designation, and 

whether that increase in threat 

outweighs the benefit of designation, 

such that the designation of critical 

habitat is not prudent. 

(4) Specific information on areas that 

provide habitat for Casey’s June beetle 

that we did not discuss in the proposed 

rule, whether such areas contain the 

physical and biological features 

essential to the conservation of Casey’s 

June beetle, and what special 

management considerations or 

protections may be required to maintain 

or enhance the essential features. 

(5) Land-use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat. 

(6) Any foreseeable economic, 

national security, or other relevant 

impact that may result from designating 

particular areas as critical habitat, and, 

in particular, any impacts to small 

entities (such as small businesses or 

small governments), and the benefits of 

including or excluding areas from the 

proposed designation that exhibit these 

impacts. 

(7) Whether any particular area being 

proposed as critical habitat should be 

excluded under section 4(b)(2) of the 

Act, and whether the benefits of 

potentially excluding any particular 

area outweigh the benefits of including 

that area under section 4(b)(2) of the 

Act. 

(8) Whether inclusion of tribal lands 

of the Agua Caliente Band of Cahuilla 

Indians of the Agua Caliente Indian 

Reservation, California (preferred name 

‘‘Agua Caliente Band of Cahuilla 

Indians’’), in Riverside County is 

appropriate and why. 

(9) The likelihood of adverse social 

reactions to the designation of critical 

habitat, and how the consequences of 

such reactions, if they occur, would 

relate to the conservation of the species 

and regulatory benefits of the proposed 

critical habitat designation. 

(10) Information on the extent to 

which the description of potential 

economic impacts in the DEA is 

complete and accurate. 

(11) The potential effects of climate 

change on this species and its habitat 

and whether the critical habitat may 

adequately account for these potential 

effects. 

(12) Whether our approach to 

designating critical habitat could be 

improved or modified in any way to 

provide an opportunity for greater 

public participation and understanding, 

or to assist us in accommodating public 

concerns and comments. 

If you submitted comments or 

information on the proposed rule (74 FR 

32857) during the initial comment 

period from July 9, 2009, to September 

8, 2009, please do not resubmit them. 

These comments are included in the 

public record for this rulemaking, and 


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