[Federal Register Volume 66, Number 29 (Monday, February 12, 2001)]
[Proposed Rules]
[Pages 9781-9798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1049]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-6932-8]


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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule and request for comment.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) today is 
proposing to grant a petition submitted by BMW Manufacturing 
Corporation, Greer, South Carolina (BMW), to exclude (or ``delist'') a 
certain hazardous waste from the list of hazardous wastes. BMW will 
generate the petitioned waste by treating wastewater from BMW's 
automobile assembly plant when aluminum is one of the metals used to 
manufacture automobile bodies. The waste so generated is a wastewater 
treatment sludge that meets the definition of F019. BMW petitioned EPA 
to grant a generator-specific delisting, because BMW believes that its 
F019 waste does not meet the criteria for which this type of waste was 
listed. EPA reviewed all of the waste-specific information provided by 
BMW, performed calculations, and determined that the waste could be 
disposed in a landfill without harming human health and the 
environment. Today's proposed rule proposes to grant BMW's petition to 
delist its F019 waste, and requests public comment on the proposed 
decision. If the proposed delisting becomes a final delisting, BMW's 
petitioned waste will no longer be classified as F019, and will not be 
subject to regulation as a hazardous waste under Subtitle C of the 
Resource Conservation and Recovery Act (RCRA). The waste will still be 
subject to local, State, and Federal regulations for nonhazardous solid 
wastes.

DATES: EPA is requesting public comments on this proposed decision. 
Comments will be accepted until March 29, 2001. Comments postmarked 
after the close of the comment period will be stamped ``late.'' These 
``late'' comments may not be considered in formulating a final 
decision.
    Any person may request a hearing on this proposed decision by 
filing a request with Richard D. Green, Director of the Waste 
Management Division, EPA, Region 4, whose address appears below, by 
February 27, 2001. The request must contain the information prescribed 
in section 260.20(d).

ADDRESSES: Send two copies of your comments to Jewell Grubbs, Chief, 
RCRA Enforcement and Compliance Branch, U.S. Environmental Protection 
Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, 
Atlanta, Georgia 30303. Send one copy to Cindy Carter, Appalachia III 
District, South Carolina Department of Health and Environmental 
Control, 975C North Church Street, Spartanburg, South Carolina 29303. 
Identify your comments at the top with this regulatory docket number: 
R4-00-01-BMWP. Comments may also be submitted by e-mail to 
<a href="/cdn-cgi/l/email-protection#99eaf6e9f1f0f8f7f6e9f6ecf5f6eab7f3ecfde0d9fce9f8b7fef6ef"><span class="__cf_email__" data-cfemail="04776b746c6d656a6b746b71686b772a6e71607d446174652a636b72">[email protected]</span></a>. If files are attached, please identify the 
format.

[[Page 9782]]

    Requests for a hearing should be addressed to Richard D. Green, 
Director, Waste Management Division, U.S. Environmental Protection 
Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, 
SW., Atlanta, Georgia 30303.
    The RCRA regulatory docket for this proposed rule is located at the 
EPA Library, U.S. Environmental Protection Agency, Region 4, Sam Nunn 
Atlanta Federal Center, 61 Forsyth Street, Atlanta, Georgia 30303, and 
is available for viewing from 9 a.m. to 4 p.m., Monday through Friday, 
excluding Federal holidays. The docket contains the petition, all 
information submitted by the petitioner, and all information used by 
EPA to evaluate the petition.
    The public may copy material from any regulatory docket at no cost 
for the first 100 pages, and at a cost of $0.15 per page for additional 
copies.
    Copies of the petition are available during normal business hours 
at the following addresses for inspection and copying: U.S. EPA, Region 
4, Library, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303, (404) 562-8190; and Appalachia III District, 
South Carolina Department of Health and Environmental Control, 975C 
North Church Street, Spartanburg, South Carolina 29303. The EPA, Region 
4, Library is located near the Five Points MARTA station in Atlanta. 
The Appalachia III District Office of the South Carolina Department of 
Health and Environmental Control is located on North Church Street 
between Whitney Road and Mendala, near the Spartanburg Regional Medical 
Center. Documents are also available for viewing and downloading at the 
Web Site of EPA, Region 4: http://www.epa.gov/region4/index.html At 
this site, click on ``Delisting,'' and then on individual documents to 
download them.

FOR FURTHER INFORMATION CONTACT: For general and technical information 
about this proposed rule, contact Judy Sophianopoulos, South 
Enforcement and Compliance Section, (Mail Code 4WD-RCRA), RCRA 
Enforcement and Compliance Branch, U.S. Environmental Protection 
Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, 
SW., Atlanta, Georgia 30303, (404) 562-8604, or call, toll free, (800) 
241-1754, and leave a message, with your name and phone number, for Ms. 
Sophianopoulos to return your call.

SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed 
in the following outline:

I. Background
    A. What Laws and Regulations Give EPA the Authority to Delist 
Wastes?
    B. How did EPA Evaluate this Petition?
    1. What methods for determining delisting levels did EPA use in 
the past?
    What is the EPACML model and how is it used to calculate 
delisting levels?
    2. What is the DRAS that uses the new EPACMTP model to calculate 
not only delisting levels, but also to evaluate the effects of the 
waste on human health and the environment?
    3. Why is the EPACMTP an improvement over the EPACML?
    4. Has the EPACMTP been formally reviewed?
    5. Has EPA modified the EPACMTP as used in the proposed 
Hazardous Waste Identification Rule (HWIR)?
    6. What modifications to the DRAS have been made since the 
proposal in 65 FR 58015-58031, September 27, 2000?
    7. What methods is EPA proposing to use to determine delisting 
levels for this petitioned waste?
II. Disposition of Delisting Petition
    A. Summary of Delisting Petition Submitted by BMW Manufacturing 
Corporation, Greer, South Carolina (BMW)
    B. What Delisting Levels Did EPA Obtain with the EPACML Model 
and with DRAS?
    C. How Did EPA Use the Multiple Extraction Procedure (MEP) to 
Evaluate This Delisting Petition?
    D. Conclusion
III. Limited Effect of Federal Exclusion
    Will this Rule Apply in All States?
IV. Effective Date
V. Paperwork Reduction Act
VI. National Technology Transfer and Advancement Act
VII. Unfunded Mandates Reform Act
VIII. Regulatory Flexibility Act, as Amended by the Small Business 
Regulatory Enforcement and Fairness Act
IX. Executive Order 12866
X. Executive Order 13045
XI. Executive Order 13084
XII. Submission to Congress and General Accounting Office
XIII. Executive Order 13132

I. Background

A. What Laws and Regulations Give EPA the Authority To Delist Wastes?

    On January 16, 1981, as part of its final and interim final 
regulations implementing section 3001 of RCRA, EPA published an amended 
list of hazardous wastes from non-specific and specific sources. This 
list has been amended several times, and is published in 40 CFR 261.31 
and 261.32. These wastes are listed as hazardous because they exhibit 
one or more of the characteristics of hazardous wastes identified in 
Subpart C of part 261 (i.e., ignitability, corrosivity, reactivity, and 
toxicity) or meet the criteria for listing contained in section 
261.11(a)(2) or (a)(3).
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
that is described in these regulations generally is hazardous, a 
specific waste from an individual facility meeting the listing 
description may not be. For this reason, sections 260.20 and 260.22 
provide an exclusion procedure, allowing persons to demonstrate that a 
specific waste from a particular generating facility \1\ should not be 
regulated as a hazardous waste.
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    \1\ Although no one produces hazardous waste intentionally, many 
industrial processes result in the production of hazardous waste, as 
well as useful products and services. A ``generating facility'' is a 
facility in which hazardous waste is produced, and a ``generator'' 
is a person who produces hazardous waste or causes hazardous waste 
to be produced at a particular place. Please see 40 CFR 260.10 for 
regulatory definitions of ``generator,'' ``facility,'' ``person,'' 
and other terms related to hazardous waste, and 40 CFR part 262 for 
regulatory requirements for generators.
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    To have their wastes excluded, petitioners must show, first, that 
wastes generated at their facilities do not meet any of the criteria 
for which the wastes were listed. See section 260.22(a) and the 
background documents for the listed wastes. Second, the Administrator 
must determine, where he/she has a reasonable basis to believe that 
factors (including additional constituents) other than those for which 
the waste was listed could cause the waste to be a hazardous waste, 
that such factors do not warrant retaining the waste as a hazardous 
waste. Accordingly, a petitioner also must demonstrate that the waste 
does not exhibit any of the hazardous waste characteristics (i.e., 
ignitability, reactivity, corrosivity, and toxicity), and must present 
sufficient information for the EPA to determine whether the waste 
contains any other toxicants at hazardous levels. See section 
260.22(a), 42 U.S.C. 6921(f), and the background documents for the 
listed wastes. Although wastes which are ``delisted'' (i.e., excluded) 
have been evaluated to determine whether or not they exhibit any of the 
characteristics of hazardous waste, generators remain obligated under 
RCRA to determine whether or not their wastes continue to be 
nonhazardous based on the hazardous waste characteristics (i.e., 
characteristics which may be promulgated subsequent to a delisting 
decision.)
    In addition, residues from the treatment, storage, or disposal of 
listed hazardous wastes and mixtures containing listed hazardous wastes 
are also considered hazardous wastes. See sections 261.3(a)(2)(iv) and 
(c)(2)(i), referred to as the ``mixture'' and ``derived-from'' rules, 
respectively. Such

[[Page 9783]]

wastes are also eligible for exclusion and remain hazardous wastes 
until excluded. On December 6, 1991, the U.S. Court of Appeals for the 
District of Columbia vacated the ``mixture/derived-from'' rules and 
remanded them to the EPA on procedural grounds. Shell Oil Co. v. EPA, 
950 F.2d 741 (D.C. Cir. 1991). On March 3, 1992, EPA reinstated the 
mixture and derived-from rules, and solicited comments on other ways to 
regulate waste mixtures and residues (57 FR 7628). These rules became 
final on October 30, 1992, 57 FR 49278), and should be consulted for 
more information regarding waste mixtures and solid wastes derived from 
treatment, storage, or disposal of a hazardous waste. The mixture and 
derived-from rules are codified in 40 CFR 261.3, paragraphs (a)(2)(iv) 
and (c)(2)(i). EPA plans to address waste mixtures and residues when 
the final portion of the Hazardous Waste Identification Rule (HWIR) is 
promulgated.
    On October 10, 1995, the Administrator delegated to the Regional 
Administrators the authority to evaluate and approve or deny petitions 
submitted in accordance with sections 260.20 and 260.22, by generators 
within their Regions (National Delegation of Authority 8-19), in States 
not yet authorized to administer a delisting program in lieu of the 
Federal program. On March 11, 1996, the Regional Administrator of EPA, 
Region 4, redelegated delisting authority to the Director of the Waste 
Management Division (Regional Delegation of Authority 8-19).

B. How Did EPA Evaluate This Petition?

    This petition requests a delisting for a hazardous waste listed as 
F019. In making the initial delisting determination, EPA evaluated the 
petitioned waste against the listing criteria and factors cited in 
sections 261.11(a)(2) and (a)(3). Based on this review, the EPA agrees 
with the petitioner that the waste is nonhazardous with respect to the 
original listing criteria. (If EPA had found, based on this review, 
that the waste remained hazardous based on the factors for which the 
waste was originally listed, EPA would have proposed to deny the 
petition.) EPA then evaluated the waste with respect to other factors 
or criteria to assess whether there is a reasonable basis to believe 
that such additional factors could cause the waste to be hazardous. See 
section 260.22(a) and (d). The EPA considered whether the waste is 
acutely toxic, and considered the toxicity of the constituents, the 
concentration of the constituents in the waste, their tendency to 
migrate and to bioaccumulate, their persistence in the environment once 
released from the waste, plausible and specific types of management of 
the petitioned waste, the quantities of waste generated, and waste 
variability.
1. What Methods for Determining Delisting Levels Did EPA Use in the 
Past?
    For this delisting determination, EPA used the information 
described in the preceding paragraph to identify plausible exposure 
routes (i.e., groundwater, surface water, air) for hazardous 
constituents present in the petitioned waste.
    What is the EPACML Model and how is it Used to Calculate Delisting 
Levels? EPA used the EPA Composite Model for Landfills (EPACML) fate 
and transport model, modified for delisting, as one approach for 
determining the proposed delisting levels for BMW's waste. See 56 FR 
32993-33012, July 18, 1991, for details on the use of the EPACML model 
to determine the concentrations of constituents in a waste that will 
not result in groundwater contamination. Delisting levels are the 
maximum allowable concentrations for hazardous constituents in the 
waste, so that disposal in a landfill will not harm human health and 
the environment by contaminating groundwater, surface water, or air. A 
Subtitle D landfill is a landfill subject to RCRA Subtitle D 
nonhazardous waste regulations, and to State and local nonhazardous 
waste regulations. If EPA makes a final decision to delist BMW's F019 
waste, BMW must meet the delisting levels and dispose of the waste in a 
Subtitle D landfill, because EPA determined the delisting levels based 
on a landfill model. However, at a future date BMW may beneficially 
reuse the waste after receiving approval by the EPA \2\ that reuse is 
at least as protective of human health and the environment as disposal 
in a landfill. With the EPACML approach, EPA calculated a delisting 
level for each hazardous constituent by using the maximum estimated 
waste volume to determine a Dilution Attenuation Factor (DAF) from a 
table of waste volumes and DAFs previously calculated by the EPACML 
model, as modified for delisting. See Table 2 of section II.B. below, 
which is adapted from 56 FR 32993-33012, July 18, 1991. The maximum 
estimated waste volume is the maximum number of cubic yards of 
petitioned waste that BMW estimated it would dispose of each year. The 
delisting level for each constituent is equal to the DAF multiplied by 
the maximum contaminant level (MCL) which the Safe Drinking Water Act 
allows for that constituent in drinking water. The delisting level is a 
concentration in the waste leachate that will not cause the MCL to be 
exceeded in groundwater underneath a landfill where the waste is 
disposed. This method of calculating delisting levels results in 
conservative levels that are protective of groundwater, because the 
model does not assume that the landfill has the controls required of 
Subtitle D landfills.
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    \2\ EPA will ask for and respond to public comment before making 
a decision on whether the reuse that BMW may propose is at least as 
protective of human health and the environment as disposal in a 
Subtitle D landfill.
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2. What Is the DRAS That Uses the New EPACMTP Model To Calculate Not 
Only Delisting Levels, But Also To Evaluate the Effects of the Waste on 
Human Health and the Environment?
    The EPA is also proposing to use the Delisting Risk Assessment 
Software (DRAS),\3\ developed by EPA, Region 6, to evaluate this 
delisting petition. The DRAS uses a new model, called the EPA Composite 
Model for Leachate Migration with Transformation Products (EPACMTP). 
The EPAMCTP improves on the EPACML model in several ways. EPA is 
proposing to use the DRAS to calculate delisting levels and to evaluate 
the impact of BMW's petitioned waste on human health and the 
environment.
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    \3\ For more information on DRAS and EPAMCTP, please see 65 FR 
75637-75651, December 4, 2000 and 65 FR 58015-58031, September 27, 
2000. The December 4, 2000 Federal Register discusses the key 
enhancements of the EPACMTP and the details are provided in the 
background documents to the proposed 1995 Hazardous Waste 
Identification Rule (HWIR) (60 FR 66344, December 21, 1995). The 
background documents are available through the RCRA HWIR FR proposal 
docket (60 FR 66344, December 21, 1995)
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    Today's proposal provides background information on the mechanics 
of the DRAS, and the use of the DRAS in delisting decision-making. 
Please see the EPA, Region 6, RCRA Delisting Technical Support Document 
(RDTSD) for a complete discussion of the DRAS calculation methods. The 
RDTSD, and Federal Registers, 65 FR 75637-75651, December 4, 2000, and 
65 FR 58015-58031, September 27, 2000, are the sources of the DRAS 
information presented in today's preamble, and are included in the RCRA 
regulatory docket for this proposed rule.
    The DRAS performs a risk assessment for petitioned wastes that are 
disposed of in the two waste management units of concern: surface 
impoundments for liquid wastes and landfills for non-liquid wastes. 
BMW's petitioned waste is solid, not liquid, and will be disposed

[[Page 9784]]

in a landfill; therefore, only the application of DRAS to landfills 
will be discussed in this preamble.
    DRAS calculates releases from solid-phase wastes in a landfill, 
with the following assumptions: (1) the wastes are disposed in a 
Subtitle D landfill and covered with a 2-foot-thick native soil layer; 
(2) the landfill is unlined or effectively unlined due to a liner that 
will eventually completely fail. The two parameters used to 
characterize landfills are (1) area and (2) depth (the thickness of the 
waste layer). Data to characterize landfills were obtained from a 
nationwide survey of industrial Subtitle D landfills.\4\ Parameters and 
assumptions used to estimate infiltration of leachate from a landfill 
are provided in the EPACMTP Background Document and User's Guide, 
Office of Solid Waste, U.S. EPA, Washington, DC, September 1996.
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    \4\ Nationwide Survey of Industrial Subtitle D Landfills, 
Westat, 1987
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    DRAS uses the EPACMTP model to simulate the fate and transport of 
dissolved contaminants from a point of release at the base of a 
landfill, through the unsaturated zone and underlying groundwater, to a 
receptor well at an arbitrary downstream location in the aquifer (the 
rock formation in which the groundwater is located). DRAS evaluates, 
with the EPACMTP model, the groundwater exposure concentrations at the 
receptor well that result from the chemical release and transport from 
the landfill (Application of EPACMTP to Region 6 Delisting Program: 
Development of Waste Volume-Specific Dilution Attenuation Factors, U.S. 
EPA, August 1996). For the purpose of delisting determinations, 
receptor well concentrations for both carcinogens and non-carcinogens 
from finite-source degraders and non-degraders are determined with this 
model. Delisted waste is a finite source, because in a finite period of 
time, the waste's constituents will leach and move out of the landfill. 
Please see Paragraph 8. Contaminant Release and Transport Scenario in 
section I.B.3. of this preamble.
3. Why Is the EPACMTP an Improvement Over the EPACML?
    The EPACMTP includes three major categories of improvements over 
the EPACML. The improvements include:
    (1) Incorporation of additional fate and transport processes (e.g., 
degradation of chemical constituents; fate and transport of metals);
    (2) Use of enhanced flow and transport equations (e.g., for 
calculating transport in three dimensions); and
    (3) Revision of the Monte Carlo methodology (e.g., to allow use of 
site-specific, waste-specific data) (EPACMTP Background Document and 
User's Guide, Office of Solid Waste, U.S. EPA, Washington, DC, 
September 1996).
    A discussion of the key enhancements which have been implemented in 
the EPACMTP is presented here and the details are provided in the 
background documents to the proposed 1995 Hazardous Waste 
Identification Rule (HWIR) (60 FR 66344, December 21, 1995). The 
background documents are available through the RCRA HWIR Federal 
Register proposal docket (60 FR 66344, December 21, 1995). For 
explanations of mathematical and chemical terms used in the discussion, 
please contact Judy Sophianopoulos, South Enforcement and Compliance 
Section, (Mail Code 4WD-RCRA), RCRA Enforcement and Compliance Branch, 
U.S. Environmental Protection Agency, Region 4, Sam Nunn Atlanta 
Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303, (404) 
562-8604, or call, toll free, (800) 241-1754, and leave a message, with 
your name and phone number, for Ms. Sophianopoulos to return your call. 
You may also contact her by e-mail: <a href="/cdn-cgi/l/email-protection#21524e514948404f4e514e544d4e520f4b544558614451400f464e57"><span class="__cf_email__" data-cfemail="2d5e425d45444c43425d425841425e03475849546d485d4c034a425b">[email protected]</span></a>.
    The EPACML accounts for: one-dimensional steady and uniform 
advective flow; contaminant dispersion in the longitudinal, lateral, 
and vertical directions; and sorption. However, advances in groundwater 
fate and transport have been made in recent years and EPA proposes and 
requests public comment on the use of the EPACMTP, which is a more 
advanced groundwater fate and transport model, for this RCRA delisting.
    The EPACML was limited to conditions of uniform groundwater flow. 
It could not handle accurately the conditions of significant 
groundwater mounding and non-uniform groundwater flow due to a high 
rate of infiltration from the waste disposal units. These conditions 
increase the transverse horizontal, as well as the vertical, spreading 
of a contaminant plume.
    The EPACMTP model overcomes the deficiencies of the EPACML in the 
following way: The subsurface as modeled with the EPACMTP consists of 
an unsaturated zone beneath a landfill and a saturated zone, the 
underlying water table aquifer. Contaminants move vertically downward 
through the unsaturated zone to the water table. The EPACMTP simulates 
one-dimensional, vertically downward flow and transport of contaminants 
in the unsaturated zone, as well as two-dimensional or three-
dimensional groundwater flow and contaminant transport in the 
underlying saturated zone. The EPACML used a saturated zone module that 
was based on a Gaussian distribution of the concentration of a chemical 
constituent in the saturated zone. The module also used an 
approximation to account for the initial mixing of the contaminant 
entering at the water table (saturated zone) underneath the waste unit. 
The module accounting for initial mixing in the EPACML could lead to 
unrealistic groundwater concentrations. The enhanced EPACMTP model 
incorporates a direct linkage between the unsaturated zone and 
saturated zone modules which overcomes these limitations of the EPACML. 
The following mechanisms affecting contaminant migration are accounted 
for in the EPACMTP model: Transport by advection and dispersion, 
retardation resulting from reversible linear or nonlinear equilibrium 
sorption on the soil and aquifer solid phase, and biochemical 
degradation processes. The EPACML did not account for biochemical 
degradation, and did not account for sorption as accurately as the 
EPACMTP.
    The EPACMTP consists of four major components:
    (1) A module that performs one-dimensional analytical and numerical 
solutions for water flow and contaminant transport in the unsaturated 
zone beneath a waste management unit;
    (2) A numerical module for steady-state groundwater flow subject to 
recharge from the unsaturated zone;
    (3) A module of analytical and numerical solutions for contaminant 
transport in the saturated zone; and
    (4) A Monte Carlo module for assessing the effect of the 
uncertainty resulting from variations in model parameters on predicted 
receptor well concentrations.
    As is true of any model, the EPACMTP is based on a number of 
simplifying assumptions that make the model easier to use and that 
ensure its computational efficiency. The major simplifying assumptions 
used in the EPACMTP are summarized below.
    1. Soil and Aquifer Medium Properties. It is assumed that the soil 
and aquifer are uniform, porous media and that flow and transport are 
described by Darcy's Law \5\ and the advection-dispersion equation \5\, 
respectively. The EPACMTP does not account for the presence of 
preferential pathways such as fractures and macropores. Although the 
aquifer properties are assumed to be uniform,

[[Page 9785]]

the model does allow for anisotropy \5\ in hydraulic conductivity.
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    \5\ Definitions: Darcy's Law states that the quantity of 
groundwater (Q) moving in an aquifer, expressed as volume of water 
per unit of time, is equal to the product of the aquifer's hydraulic 
conductivity (K); the cross-sectional area (A) through which the 
groundwater moves and which is at a right angle to the direction of 
groundwater flow; and the hydraulic gradient (dh/dl): Q=KA(dh/dl). 
The advection-dispersion equation indicates that contaminant 
transport is dependent on soil properties, such as bulk density, 
porosity, volumetric water content, and fraction of organic carbon; 
contaminant properties, such as solubility in water, diffusion 
coefficient in air, strength of binding to soil organic carbon, 
Henry's Law Constant, (the ratio of a contaminant's concentration in 
air to its concentration in water), and; site properties, such as 
recharge rate, contaminant concentrations in recharge, depth to 
groundwater, and dimensions of modeled layer. Anistropy is a 
condition where properties are not the same in every direction.
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    2. Flow in the Unsaturated Zone. Flow in the unsaturated zone is 
assumed to be steady-state, one-dimensional, vertical flow from beneath 
the source toward the water table. The lower boundary of the 
unsaturated zone is assumed to be the water table. The flow in the 
unsaturated zone is assumed to be predominantly gravity-driven, and 
therefore the vertical flow component accounts for most of the fluid 
flux between the source and the water table. The flow rate is assumed 
to be determined by the long-term average infiltration rate through the 
landfill.
    3. Flow in the Saturated Zone. The saturated zone module of the 
EPACMTP is designed to simulate flow in an unconfined aquifer with 
constant saturated thickness. The model assumes regional flow in a 
horizontal direction with vertical disturbance resulting from recharge 
and infiltration from the overlying unsaturated zone and landfill. The 
lower boundary of the aquifer is assumed to be impermeable. Flow in the 
saturated zone is assumed to be steady-state. The EPACMTP accounts for 
different recharge rates beneath and outside the source area. 
Groundwater mounding beneath the source is represented in the flow 
system by increased head values at the top of the aquifer. This 
approach is reasonable as long as the height of the mound is small 
relative to the thickness of the saturated zone.
    4. Transport in the Unsaturated Zone. Contaminant transport in the 
unsaturated zone is assumed to occur by advection and dispersion. The 
unsaturated zone is assumed to be initially contaminant-free, and 
contaminants are assumed to migrate vertically downward from the 
disposal facility. The EPACMTP can simulate both steady-state and 
transient transport in the unsaturated zone with single-species or 
multiple-species chain decay reactions and with linear or nonlinear 
sorption.
    5. Transport in the Saturated Zone. Contaminant transport in the 
saturated zone is assumed to be a result of advection and dispersion. 
The aquifer is assumed to be initially contaminant-free, and 
contaminants are assumed to enter the aquifer only from the unsaturated 
zone immediately beneath the waste disposal facility, which is modeled 
as a rectangular, horizontal plane source. The EPACMTP can simulate 
both steady-state and transient three-dimensional transport in the 
aquifer. For steady-state transport, the contaminant mass flux entering 
at the water table must be constant with time; for the transient case, 
the flux at the water table may be constant or may vary as a function 
of time. The EPACMTP can simulate the transport of a single species or 
multiple species, chain decay reactions, and linear sorption.
    6. Contaminant Phases. The EPACMTP assumes that the dissolved phase 
is the only mobile phase and disregards interphase mass transfer 
processes other than adsorption onto the solid phase. The model does 
not account for volatilization in the unsaturated zone; this is a 
conservative approach for volatile chemicals. The model also does not 
account for the presence of a nonaqueous-phase liquid (such as oil) or 
for transport in the gas phase. When a mobile oil phase is present, 
significant contaminant migration may occur within it, and the EPACMTP 
may underestimate the movement of hydrophobic chemicals (chemicals that 
``prefer'' not to be dissolved in water, but to be dissolved in oil or 
oil-like materials).
    7. Chemical Reactions. The EPACMTP computes chemical reactions 
involving adsorption and decay processes. The EPACMTP assumes that 
sorption of organic compounds in the subsurface is represented by 
linear adsorption isotherms in both the unsaturated and saturated 
zones. It is assumed that adsorption of contaminants onto the soil or 
aquifer solid phase occurs instantaneously and is entirely reversible. 
The effect of geochemical interactions is especially important in fate 
and transport analyses of metals. For simulation of metals, the EPACMTP 
uses sorption isotherms generated by EPA's MINTEQA2 metals speciation 
model, which takes into account the fact that many metals can exist in 
more than one chemical form or species, and that geochemical conditions 
can have large effects on the mobility of metals. The EPACML could not 
account for metals speciation. MINTEQA2 is used to generate effective 
sorption isotherms for individual metals. The sorption isotherms 
correspond to a range of geochemical conditions that cause a metal to 
be present in different chemical forms or species which sorb (or bind) 
to subsurface material in different ways with different binding 
strengths (EPACMTP Metals Background Document, Office of Solid Waste, 
U. S. EPA, Washington, DC, September 1996). The transport modules for 
both the unsaturated and saturated zones in EPACMTP have been enhanced 
to incorporate the nonlinear MINTEQA2 sorption isotherms. This 
enhancement provides the model with the capability to simulate the 
impact of pH, leachate organic matter, natural organic matter, iron 
hydroxide and the presence of other ions in the groundwater on the 
mobility of metals in the unsaturated and saturated zones. The EPACMTP 
also accounts for chemical and biological transformation processes. All 
transformation reactions are represented by first-order decay 
processes. An overall decay rate is specified for the model; therefore, 
the model cannot explicitly consider the separate effects of multiple 
degradation processes such as oxidation, hydrolysis, and 
biodegradation. The user must determine the overall, effective decay 
rate when multiple decay processes are to be represented. To maximize 
its flexibility, the EPACMTP has the capability of determining the 
overall decay rate from chemical-specific hydrolysis constants using 
soil and aquifer temperature and pH values. The EPACMTP assumes that 
reaction stoichiometry (the proportion of each chemical taking part in 
a chemical reaction) is prescribed for scenarios involving chain decay 
reactions. The speciation factors are specified as constants by the 
user (see the EPACMTP Background Document and User's Guide, Office of 
Solid Waste, U.S. EPA, Washington, DC, September 1996). In reality, 
these coefficients may change as functions of aquifer conditions (for 
example, temperature and pH), concentration levels of other chemical 
components, or both.
    8. Contaminant Release and Transport Scenario. Two source release 
scenarios are considered in the EPACMTP: continuous (infinite) and 
finite-source. Only the finite-source scenario is considered for 
delisting. For finite-source scenarios, the release of contaminants 
occurs over a finite period of time, after which the leachate 
concentration becomes zero (that is, all the contaminants in the waste 
disposed

[[Page 9786]]

of in the landfill have leached out). The landfill parameters used by 
the EPACMTP to calculate contaminant release include values and/or 
frequency distributions of the capacity and dimensions of the landfill, 
the leachate concentration, infiltration and recharge rates, pulse 
duration, the fraction of hazardous waste in the landfill, the density 
of the waste, and the concentration of the chemical constituent in the 
hazardous waste. Data on the areas, volumes, and locations of landfills 
were obtained from the Nationwide Survey of Industrial Subtitle D 
Landfills, Westat, 1987. Derivation of the parameters for landfills is 
described in the EPACMTP Background Document and User's Guide, Office 
of Solid Waste, U.S. EPA, Washington, DC, September 1996. For finite-
source scenarios, simulations are performed for transient conditions, 
and the source is assumed to be a pulse of finite duration. In the case 
of landfills, the pulse duration is based on the initial amount of 
contaminant in the landfill, infiltration rate, landfill dimensions, 
waste and leachate concentration, and waste density. For a finite-
source scenario, the model can calculate either the peak receptor well 
concentration for non-carcinogens or an average concentration over a 
specified period for carcinogens. The finite-source methodology in the 
EPACMTP is discussed in detail in the EPACMTP Background Document for 
the Finite Source Methodology for Chemicals with Transformation 
Products and Implementation of the HWIR, Office of Solid Waste, U.S. 
EPA, Washington, DC, September 1996.
    9. EPACMTP Modeling Assumptions and Input Parameters. Specific 
EPACMTP modeling assumptions (in addition to the simplifying 
assumptions discussed in the eight preceding paragraphs) are summarized 
in Table 1A, below. This table also provides information on important 
input parameters as well as on their data sources or details. Overall, 
EPACMTP input parameters can be organized in the following four groups:

1. Source-specific parameters
2. Chemical-specific parameters
3. Unsaturated zone-specific parameters
4. Saturated zone-specific parameters

For delisting, the EPACMTP is run in Monte Carlo mode (probabilistic 
calculations), and the source-, 
chemical-, unsaturated zone-, and saturated-zone specific parameters 
are represented by probability distributions reflecting variations on a 
national or a regional level. Specific capabilities and requirements 
associated with running the EPACMTP in the Monte Carlo mode are 
presented in Chapter 3 of EPA's Composite Model for Leachate Migration 
with Transformation Products, EPACMTP: User's Guide, Office of Solid 
Waste, U.S. EPA, Washington, DC, 1997. The Monte Carlo analysis 
determines the effect of the possible range of the input parameter of 
concern on the receptor well concentration. Output values produced for 
each iteration are sorted and ranked from highest to lowest in order to 
obtain a probabilistic distribution of receptor well concentrations. 
The different groups of input parameters are summarized below. For 
chemicals that were not modeled using the EPACMTP fate and transport 
model, the most conservative DAF was assigned (i.e., DAF=18f).

      Table 1A.--EPACMTP Modeling Assumptions and Input Parameters
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
                          Modeling assumptions
------------------------------------------------------------------------
       Modeling element                   Description or value
------------------------------------------------------------------------
Management Scenario..........  Landfill.
Modeling Scenario............  Finite-source Monte Carlo; depleting
                                source for organics, constant
                                concentration pulse source for metals.
Exposure Evaluation..........  Downgradient groundwater receptor well;
                                maximum well concentration of non-
                                carcinogens during modeling period,
                                maximum 30-year average well
                                concentration of carcinogens; 10,000-
                                year exposure period.
Regulatory Protection........  Level 90 percent.
------------------------------------------------------------------------
                       Source-specific parameters
------------------------------------------------------------------------
          Parameter                       Description or value
------------------------------------------------------------------------
Landfill Area................  Derived.
Landfill Volume..............  User-specified.
Infiltration Rate from         Site-based, derived from water balance
 Landfill.                      using HELP model.
Leaching Duration from         Derived, continues until all constituents
 Landfill.                      have leached out; 20 years (operational
                                life of unit).
------------------------------------------------------------------------
                      Chemical-specific parameters
------------------------------------------------------------------------
          Parameter                      Description and source
------------------------------------------------------------------------
Decay Rate:
    Organic Constituents.....  Hydrolysis rate constants compiled by
                                U.S. EPA ORD.
    Metals...................  No decay.
Sorption:
    Organic Constituents.....  Koc constants compiled by U.S. EPA ORD.
    Metals...................  MINTEQA2 sorption isotherm coefficients
                                (Kd) for Pb, Hg (II), Ni, Cr (III), Ba,
                                Cd, Ag, Zn, Cu (II), Be]; pH- dependent
                                isotherm coefficients for As (III), Cr
                                (VI), Se (VI), Th.
------------------------------------------------------------------------
                  Unsaturated zone-specific parameters
------------------------------------------------------------------------
          Parameter                      Description and source
------------------------------------------------------------------------
Depth to Groundwater.........  Site-based, from API and USGS
                                hydrogeologic database.

[[Page 9787]]

 
Soil Hydraulic Parameters:     U.S. EPA ORD data based on national
 Fraction Organic Carbon Bulk   distribution of three soil types (sandy
 Density.                       loam, silt loam, silty clay loam).
------------------------------------------------------------------------
                   Saturated zone-specific parameters
------------------------------------------------------------------------
          Parameter                      Description and source
------------------------------------------------------------------------
Recharge Rate................  Site-based, derived from regional
                                precipitation and evaporation data and
                                soil type.
Aquifer Thickness............  Site-based, from API and USGS
                                hydrogeologic database.
Hydraulic Conductivity.......  Site-based, from API and USGS
                                hydrogeologic database.
Hydraulic Gradient...........  Site-based, from API and USGS
                                hydrogeologic database.
Porosity.....................  Effective porosity derived from national
                                distribution of aquifer particle
                                diameter.
Bulk Density.................  Derived from porosity.
Dispersivity.................  Derived from distance to receptor well.
Groundwater Temperature......  Site-based, from USGS regional
                                temperature map.
Fraction Organic Carbon......  National distribution, from U.S. EPA
                                STORET database.
pH...........................  National distribution, from U.S. EPA
                                STORET database.
------------------------------------------------------------------------
                        Receptor well parameters
------------------------------------------------------------------------
         Well element                    Description and source
------------------------------------------------------------------------
Radial Distance from Landfill  Nationwide distribution, from U.S. EPA
                                OSW database.
Angle Off-Center.............  Unifrom within <plus-minus> 90 deg. from
                                plume center line (no restriction within
                                plume).
Depth of Intake Point........  Uniform throughout saturated thickness of
                                aquifer.
------------------------------------------------------------------------
Notes:
Table is adapted from Tables 2-1, Chapter 2 of Region 6's RCRA Delisting
  Technical Support Document, EPA906-D-98-001, Interim Final, August 1,
  2000.
API = American Petroleum Institute.
HELP = Hydrologic Evaluation of Landfill Performance; The HELP model was
  used to calculate landfill infiltration rates for a representative
  subtitle D landfill with 2-foot earthen cover, and no liner or
  leachate collection system, using climatic data from 97 climatic
  stations located throughout the United States. These correspond to the
  reasonable worst case assumptions as explained in the HWIR Risk
  Assessment Background Document for the HWIR proposed notice 60 FR
  66344 (December 21, 1995). Additional details on the methodologies
  used by the EPACMTP to derive DAFs for waste constituents modeled for
  the landfill scenario are presented in the Background Documents for
  the proposed HWIR rule. See 60 FR 66344 (December 21, 1995). The
  fraction of waste in the landfill is assigned a uniform distribution
  with lower and upper limits of 0.036 and 1.0, respectively, based on
  analysis of waste composition in Subtitle D landfills. The lower bound
  assures that the landfill will always contain a minimum amount of the
  waste of concern. The waste density is assigned a value based on
  reported densities of hazardous waste, and varies between 0.7 and 2.1
  g/cm.<SUP>3</SUP>
ORD = U.S. EPA Office of Research and Development.
STORET = Database Utility for STORage and RETrieval of Chemical,
  Physical, and Biological Data for Water Quality.
USGS = U.S. Geological Survey.

4. Has the EPACMTP Methodology Been Formally Reviewed?
    The Science Advisory Board (SAB), a public advisory group that 
provides information and advice to the EPA, reviewed the EPACMTP model 
as part of a continuing effort to provide improvements in the 
development and external peer review of environmental regulatory 
models. Overall, the SAB commended EPA for making significant 
enhancements to the EPACMTP's predecessor, the EPACML and for 
responding to previous SAB suggestions. The SAB also concluded that the 
mathematical formulation incorporating daughter products into the model 
appeared to be correct and that the site-based approach using 
hydrogeologic regions is superior to the previous approach used in 
EPACML. The model underwent public comment during the 1995 proposed 
HWIR. See 60 FR 66344 (December 21, 1995).
5. Has EPA Modified the EPACMTP as Used in the Proposed Hazardous Waste 
Identification Rule (HWIR)?
    The EPACMTP, as developed for HWIR, determined the DAF using a 
Monte Carlo approach that selected, at random, a waste volume from a 
range of waste volumes identified in EPA's 1987 Subtitle D landfill 
survey. In delisting determinations, the waste volume of the petitioner 
is known. Therefore, application of EPACMTP to the delisting program 
has been modified to evaluate the specific waste volume, just as the 
original EPACML model was modified for delisting to derive DAFs related 
to waste volume from DAFs related to landfill area. EPA modified the 
DAFs determined under the HWIR proposal to account for a known waste 
volume. To generate waste volume-specific DAFs, EPA developed ``scaling 
factors'' to modify DAFs developed for HWIR (based on the entire range 
of waste disposal units) to DAFs for delisting waste volumes. This was 
accomplished by computing a 90th percentile DAF for a conservative 
chemical (a chemical that persists in the environment) for 10 specific 
waste volumes (ranging from 1,000 cubic yards to 300,000 cubic yards) 
for each waste management scenario (landfill and surface impoundment). 
EPA assumed that DAFs for a specific waste volume are linearly related 
to DAFs developed by EPACMTP for the HWIR. DAF scaling factors were 
computed for the ten increment waste volumes. Using these ten scaling 
factor DAFs, regression equations were developed for each waste 
management scenario to provide a continuum of DAF scaling factors as a 
function of waste volume.
    The regression equations are coded into the DRAS program which then 
automatically adjusts the DAF for the waste volume of the petitioner.
    The method used to verify the scaling factor approach is presented 
in the document, Application of EPACMTP to Region 6 Delisting Program: 
Development of Waste Volume-Specific Dilution Attenuation Factors, U.S. 
EPA, August 1996. For the landfill waste management scenario, the DAF 
scaling factors ranged from 9.5 for 10,000 cu.

[[Page 9788]]

yard to approximately 1.0 for waste volumes greater than 200,000 cu. 
yards. Therefore, for petitioned waste volumes greater than 200,000 cu. 
yards, the waste volume-specific DAF is the same as the DAF computed 
for the proposed HWIR. The regression equation that can be used to 
determine the DAF scaling factor (DSF) as a function of waste volume 
(in cubic yards) for the landfill waste management unit is: DSF = 
6152.7* (waste volume) <SUP>-0.7135</SUP>. The correlation coefficient 
of this regression equation is 0.99, indicating a good fit of this line 
to the data points.
6. What Modifications to the DRAS Have Been Made Since the Proposal in 
65 FR 58015-58031, September 27, 2000?
    Several revisions have been made to the DRAS program in order to 
improve the modeling. 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 by McKone and Bogen 
(1992) \6\ 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.
---------------------------------------------------------------------------

    \6\ McKone, T.E., and K.T. Bogen, 1992, ``Uncertainties in 
Health-Risk Assessment: An Integrated Case Study Based on 
Tetrachloroethylene in California Groundwater.'' Regulatory 
Toxicology and Parmacology, 15:86-103.
---------------------------------------------------------------------------

    The revised model used in this analysis is based on the equations 
presented in McKone (1987) \7\. 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 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.
---------------------------------------------------------------------------

    \7\ McKone, T.E. 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 emissions can be modeled based on falling droplets as a 
means of estimating the surface-area-to-volume 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 surface-area-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 \8\ 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.
---------------------------------------------------------------------------

    \8\ Farmer, W.J., MS. Yange and J. Letey. ``Land Disposal of 
Hexachlorobenzene Wastes Controlling Vapor Movement in Soils.'' In: 
Land Disposal of Hazardous Wastes, Proceedings of the Fourth Annual 
Research Symposium. Held at San Antonio, TX on March 6, 7 and 8. 
EPA-600/9-78-016. U.S. EPA Office of Research and Development, 
Municipal Environmental Research Laboratory, Cincinnati OH. August.
---------------------------------------------------------------------------

    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 EPA 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 (HHRAP).
    Recent developments in mercury partitioning described in the 
Mercury Report to Congress 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.

[[Page 9789]]

Biological processes in surface water cause the conversion, or 
methylation, of elemental mercury to methyl mercury. In accordance with 
the HHRAP, 15% of mercury in the water column is assumed to be 
converted to methyl mercury. This fraction is then used, along with the 
current bioaccumulation factor, to determine the predicted 
concentration of methyl mercury in fish tissue.
7. What Methods Is EPA Proposing To Use To Determine Delisting Levels 
for This Petitioned Waste?
    BMW submitted to the EPA analytical data from its Greer, South 
Carolina plant and from the BMW plant in Dingolfing, Germany. Four 
composite samples of wastewater treatment sludge, from approximately 60 
batches of wastewater, were collected from each plant, over a three-
week period. A summary of analytical data is presented in Table 1B of 
section II below, with analytical details in the Table footnotes.
    After reviewing the analytical data and information on processes 
and raw materials that BMW submitted in the delisting petition, EPA 
developed a list of constituents of concern and calculated delisting 
levels for them using MCLs and EPACML DAFs and calculated delisting 
levels and risks using DRAS and EPACMTP DAFs as described above. EPA 
requests public comment on these proposed methods of calculating 
delisting levels and risks for BMW's petitioned waste.
    EPA also requests comment on three additional methods of evaluating 
BMW's delisting petition and determining delisting levels: (1) Use of 
the Multiple Extraction Procedure (MEP), SW-846 Method 1320,\9\ to 
evaluate the long-term resistance of the waste to leaching in a 
landfill; (2) setting limits on total concentrations of constituents in 
the waste that are more conservative than results of calculations of 
constituent release from waste in a landfill to surface water and air, 
and release during waste transport; and (3) setting delisting levels at 
the Land Disposal Restrictions (LDR) Universal Treatment Standards 
(UTS) levels in 40 CFR 268.48. The UTS levels for BMW's constituents of 
concern are the following:
---------------------------------------------------------------------------

    \9\ ``SW-846'' means EPA Publication SW-846, ``Test Methods for 
Evaluating Solid Waste, Physical/Chemical Methods.'' Methods in this 
publication are referred to in today's proposed rule as ``SW-846,'' 
followed by the appropriate method number.
---------------------------------------------------------------------------

    Barium: 21 mg/l TCLP; Cadmium: 0.11 mg/l TCLP; Chromium: 0.60 mg/l 
TCLP; Cyanide Total: 590 mg/kg; Cyanide Amenable 30 mg/kg; Lead: 0.75 
mg/l TCLP; Nickel: 11 mg/l TCLP.
    The EPA provides notice and an opportunity for comment before 
granting or denying a final exclusion. Thus, a final decision will not 
be made until all timely public comments (including those at public 
hearings, if any) on today's proposal are addressed.

II. Disposition of Delisting Petition

A. Summary of Delisting Petition Submitted by BMW Manufacturing 
Corporation, Greer, South Carolina (BMW)

    BMW manufactures BMW automobiles, and is seeking a delisting for 
the sludge that will be generated by treating wastewater from its 
manufacturing operations, when aluminum will be used to replace some of 
the steel in the automobile bodies. Wastewater treatment sludge does 
not meet a hazardous waste listing definition when steel-only 
automobile bodies are manufactured. However, the wastewater treatment 
sludge generated at automobile manufacturing plants where aluminum is 
used as a component of automobile bodies, meets the listing definition 
of F019 in Sec. 261.31.\10\
---------------------------------------------------------------------------

    \10\ ``Wastewater treatment sludges from the chemical conversion 
coating of aluminum except from zirconium phosphating in aluminum 
can washing when such phosphating is an exclusive conversion coating 
process.''
---------------------------------------------------------------------------

    BMW petitioned EPA, Region 4, on June 2, 2000, to exclude this F019 
waste, on a generator-specific basis, from the lists of hazardous 
wastes in 40 CFR part 261, subpart D.
    The hazardous constituents of concern for which F019 was listed are 
hexavalent chromium and cyanide (complexed). BMW petitioned the EPA to 
exclude its F019 waste because BMW does not use either of these 
constituents in the manufacturing process. Therefore, BMW does not 
believe that the waste meets the criteria of the listing.
    BMW claims that its F019 waste will not be hazardous because the 
constituents of concern for which F019 is listed will be present only 
at low concentrations and will not leach out of the waste at 
significant concentrations. BMW also believes that this waste will not 
be hazardous for any other reason (i.e., there will be no additional 
constituents or factors that could cause the waste to be hazardous). 
Review of this petition included consideration of the original listing 
criteria, as well as the additional factors required by the Hazardous 
and Solid Waste Amendments (HSWA) of 1984. See section 222 of HSWA, 42 
U.S.C. 6921(f), and 40 CFR 260.22(d)(2)-(4). Today's proposal to grant 
this petition for delisting is the result of the EPA's evaluation of 
BMW's petition.
    In support of its petition, BMW submitted: (1) Descriptions of its 
manufacturing and wastewater treatment processes, the generation point 
of the petitioned waste, and the manufacturing steps that will 
contribute to its generation; (2) Material Safety Data Sheets (MSDSs) 
for materials used to manufacture automobiles and to treat wastewater; 
(3) the minimum and maximum annual amounts of wastewater treatment 
sludge generated from 1996 through 1999, and an estimate of the maximum 
annual amount expected to be generated in the future; (4) results of 
analysis for metals, cyanide, sulfide, fluoride, and volatile organic 
compounds in the currently generated waste at the BMW plants in Greer, 
South Carolina, and Dingolfing, Germany; (5) results of the analysis of 
leachate obtained by means of the Toxicity Characteristic Leaching 
Procedure ((TCLP), SW-846 Method 1311), from these wastes; (6) results 
of the determinations for the hazardous characteristics of 
ignitability, corrosivity, and reactivity, in these wastes; (7) results 
of determinations of dry weight percent, bulk density, and free liquids 
in these wastes; and (8) results of the MEP analysis of the currently 
generated waste at the plant in Greer, South Carolina.
    The BMW automobile assembly plant in Greer, South Carolina, 
manufactures automobiles for domestic consumption and for shipment to 
foreign markets. BMW's Standard Industrial Classification (SIC) code is 
3711. The assembly plant operations include body welding, conversion 
coating, painting, final assembly, and shipment. The manufacturing 
process that will cause F019 to be generated is conversion coating, 
when applied to automobile bodies that contain aluminum. Conversion 
coating takes place in the plant's paint shop and treats the metal 
surface of each automobile body before painting to provide resistance 
to corrosion and to prepare the metal surface for optimum paint 
adhesion. Wastewater from all plant operations is treated at BMW's 
wastewater pretreatment plant which is located in an area of the paint 
shop. The wastewater is treated to meet the requirements of BMW's 
wastewater pretreatment permit before discharging the water to the 
publicly owned treatment works (POTW). Treatment results in the 
formation of insoluble

[[Page 9790]]

metal hydroxides and phosphates. Wastewater treatment sludge is 
generated when these metal hydroxides and phosphates are dewatered in a 
filter press. The sludge that exits from the filter press will be 
classified as F019 when the automobile bodies contain aluminum, and the 
exit from the filter press will be the point of generation of F019.
    BMW began generating wastewater treatment sludge from its Greer, 
South Carolina, assembly plant in 1994. From 1996 through 1999, BMW 
generated from 264 tons to 386 tons of wastewater treatment sludge per 
year. BMW estimated that production could increase to 1,600 vehicles 
per day in the next decade, and the generation rate of wastewater 
treatment sludge could reach 2,400 tons per year. BMW produces 
relatively large quantities of sludge because the company voluntarily 
removes phosphate from its wastewater in order to protect water quality 
in a recreational lake located downstream of the POTW discharge.
    Table 1B below summarizes the hazardous constituents and their 
concentrations in BMW's wastewater treatment sludge generated from the 
manufacture of steel-only automobile bodies at the Greer, South 
Carolina, plant, and in the wastewater treatment sludge generated from 
the manufacture of automobile bodies containing steel and aluminum, at 
the BMW plant in Dingolfing, Germany.

              Table 1B.--BMW Manufacturing Corporation, Greer, South Carolina, and Dingolfing, Germany: Wastewater Treatment Sludge Profile
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                C.V.\3\
              Parameters \1\                        1                  2               3         4 \2\       Max.        Mean        S.D.      (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                  Metals
Barium:
    SC Plant..............................                402          387 (383)         377         368         402       383.4        12.6         3.3
    German Plant..........................          144 (106)                116         120         121         144       121.4        14.0        11.5
Barium--TCLP:
    SC Plant..............................                 ND            ND (ND)          ND          ND          NA          NA          NA          NA
    German Plant..........................            ND (ND)                 ND          ND          ND          NA          NA          NA          NA
Cadmium:
    SC Plant..............................               21.3        21.5 (21.1)        20.6        19.9        21.5       20.88       0.642         3.1
    German Plant..........................        3.77 (3.48)               3.26          ND          ND        3.77        3.42        0.22         6.5
Cadmium--TCLP:
    SC Plant..............................                 ND            ND (ND)          ND          ND          NA          NA          NA          NA
    German Plant..........................            ND (ND)                 ND          ND          ND          NA          NA          NA          NA
Chromium:
    SC Plant..............................                202          222 (207)         213         201         222         209        8.69         4.2
    German Plant..........................        94.3 (84.2)               90.5        94.6         100         100       92.72        5.84         6.3
Chromium--TCLP:
    SC Plant..............................                 ND            ND (ND)          ND          ND          NA          NA          NA          NA
    German Plant..........................            ND (ND)                 ND          ND          ND          NA          NA          NA          NA
Lead:
    SC Plant..............................                337          356 (348)         356         340         356         347        8.82         2.5
    German Plant..........................      1,920 (1,430)              1,540       1,490       1,240       1,920       1,524       248.9        16.3
Lead--TCLP:
    SC Plant..............................                 ND            ND (ND)          ND          ND          NA          NA          NA          NA
    German Plant..........................            ND (ND)                 ND          ND          ND          NA          NA          NA          NA
Nickel:
    SC Plant..............................              1,400      1,660 (1,560)       1,710       1,500       1,710       1,566       124.0         7.9
    German Plant..........................      5,680 (5,350)              5,620       5,860       6,450       6,450       5,792       410.8         7.1
Nickel--TCLP:
    SC Plant..............................               6.00        5.69 (5.80)        6.25        6.09        6.25       5.966       0.224         3.8
    German Plant..........................          0.73 (ND)               0.62          ND          ND        0.73        0.57        0.10        18.1
Zinc:
    SC Plant..............................             15,000    15,100 (14,300)      14,000      13,300      15,100      14,300       743.6         5.2
    German Plant..........................    14,600 (12,500)             13,800      13,800      13,900      14,600      13,720       759.6         5.5
Zinc--TCLP:
    SC Plant..............................               6.08        6.21 (6.07)        5.42        5.87        6.21        5.93       0.310         5.2
    German Plant..........................            ND (ND)                 ND          ND          ND          NA          NA          NA          NA
 
        Volatile Organic Compounds
 
Acetone:
    SC Plant..............................             5.950j    3.263j (1.432j)      3.372j      1.793j      5.950j       3.162       1.781        56.3
    German Plant..........................            ND (ND)                 ND          ND          ND          ND          NA          NA          NA
Acetone--TCLP:
    SC Plant..............................              8.28j    5.13j (0.0507j)       2.68j       1.34j       8.28j        3.50        3.27        93.4
    German Plant..........................  0.6067j (0.3581j)             1.563j     0.3090j      1.490j      1.563j      0.8654      0.6145        71.0
2-Butanone:
    SC Plant..............................              1.055         1.122 (ND)      0.6889      0.2672       1.122      0.6623      0.4348        65.7
    German Plant..........................            ND (ND)                 ND          ND          ND          ND          NA          NA          NA
2-Butanone--TCLP:
    SC Plant..............................                 ND            ND (ND)          ND          ND          ND          NA          NA          NA
    German Plant..........................            ND (ND)                 ND          ND          ND          ND          NA          NA          NA
Ethylbenzene:
    SC Plant..............................            0.6917j    0.5789j 0.2875j     0.1960j     0.7879j     0.7879j      0.5084      0.2564        50.4
    German Plant..........................            ND (ND)                 ND          ND          ND          ND          NA          NA          NA

[[Page 9791]]

 
Ethylbenzene--TCLP:
    SC Plant..............................                 ND            ND (ND)          ND          ND          ND          NA          NA          NA
    German Plant..........................            ND (ND)                 ND          ND          ND          ND          NA          NA          NA
4-Methyl-2-pentanone:
    SC Plant..............................             0.4100        0.3089 (ND)      0.2843      0.1948       0.410      0.2753      0.0938        34.1
    German Plant..........................            ND (ND)                 ND          ND          ND          ND          NA          NA          NA
4-methyl-2-pentanone--TCLP:
    SC Plant..............................                 ND            ND (ND)          ND          ND          ND          NA          NA          NA
    German Plant..........................            ND (ND)             0.0733          ND          ND      0.0733          NA          NA          NA
Toluene:
    SC Plant..............................                 ND        0.0211 (ND)          ND          ND      0.0211          NA          NA          NA
    German Plant..........................            ND (ND)                 ND          ND          ND          ND          NA          NA          NA
Toluene--TCLP:
    SC Plant..............................                 ND            ND (ND)          ND          ND          ND          NA          NA          NA
    German Plant..........................            ND (ND)                 ND          ND          ND          ND          NA          NA          NA
Xylenes, total:
    SC Plant..............................            2.4828j    2.144j (1.089j)     0.6871j      2.445j     2.4828j      1.7696      0.8276        46.8
    German Plant..........................      1.133 (1.000)             0.5667       1.233       1.050       1.233       0.997       0.256        25.7
Xylenes, total--TCLP:
    SC Plant..............................                 ND        ND (0.0038)          ND          ND      0.0038          NA          NA          NA
    German Plant..........................    0.0273 (0.0255)             0.0343      0.0297      0.0407      0.0407      0.0315      0.0061        19.4
 
      Hazardous Waste Characteristics
 
Corrosivity:
    SC Plant..............................                 No            No (No)          No          No          NA          NA          NA          NA
    German Plant..........................            No (No)                 No          No          No          NA          NA          NA          NA
Ignitability:
    SC Plant..............................                 No            No (No)          No          No          NA          NA          NA          NA
    German Plant..........................            No (No)                 No          No          No          NA          NA          NA          NA
Reactive Sulfide:
    SC Plant..............................               153j         194j (32j)         52j         78j        194j       101.8        69.0        67.8
    German Plant..........................            ND (ND)                 ND          ND          ND          ND          NA          NA          NA
Reactive Cyanide:
    SC Plant..............................                 ND            ND (ND)          ND          ND          ND          NA          NA          NA
    German Plant..........................            ND (ND)                 ND          ND          ND          ND          NA          NA          NA
 
           Inorganic Non-metals
 
Total Cyanide:
    SC Plant..............................                 ND      2.05j (3.35j)          ND          ND     (3.35j)        2.28       0.599        26.3
    German Plant..........................            ND (ND)                 ND          ND          ND          ND          NA          NA          NA
Amenable Cyanide:
    SC Plant..............................                 ND            ND (ND)          ND          ND          ND          NA          NA          NA
    German Plant..........................            ND (ND)                 ND          ND          ND          ND          NA          NA          NA
Fluoride:
    SC Plant..............................                8.6          9.7 (9.4)        11.7        13.7        13.7       10.62        2.07        19.5
    German Plant..........................        8.0j (9.2j)               8.4j       15.6j       15.5j       15.6j        11.3        3.87        34.2
 
                Properties
 
Dry Weight Percent:
    SC Plant..............................                 30            28 (28)          28          29          30        28.6       0.894         3.1
    German Plant..........................            30 (31)                 30          30          30          31        30.2       0.447         1.5
Paint Filter Test \4\:
    SC Plant..............................               Pass        Pass (Pass)        Pass        Pass          NA          NA          NA          NA
    German Plant..........................        Pass (Pass)               Pass        Pass        Pass          NA          NA          NA         NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Parameters are the chemicals or properties analyzed. Results for the two plants are in separate rows below the name of the chemical or property.
\2\ The first set of results for each chemical shows the concentrations determined by total analysis of the samples in milligrams of chemical per
  kilogram of waste (mg/kg). The second set of results for each chemical shows the concentrations determined by analysis of the TCLP extracts of the
  samples in milligrams of chemical per liter of TCLP extract of the waste (mg/L). The TCLP results are just below the row where the name of the
  chemical is followed by ``--TCLP.'' ND = Not detected. NA = Not applicable. j = Parameter concentration estimated based on validation criteria. The
  metals, antimony, hexavalent chromium, silver, and vanadium, and the volatile organic compounds ethyl acetate, isobutanol, -butanol, and methanol were
  not detected by total analysis of samples from both plants and are not included in the table in order to save space. Numbers 1 through 4 in the table
  heading identify composite samples. Results in parentheses are for duplicate samples. As described in the petition, each composite sample is a mixture
  of six grab samples. Grab samples were used for total analysis of volatile organic chemicals.

[[Page 9792]]

 
\3\ The last four columns contain a statistical analysis of the analytical results. Max. = maximum concentration found; Mean. = mean or average
  concentration found = sum of concentrations divided by the number of samples; S.D.= standard deviation = the square root of [(sum of squares of the
  differences between each measured concentration and the mean) divided by (the number of samples minus 1)]; C.V. = coefficient of variation, expressed
  as a percent = 100 times the standard deviation divided by the mean concentration. Statistical analyses were performed only if the parameter was
  detected in more han one sample. Detection limits reported by the laboratory were used in the statistical calculations when chemicals were not
  detected (ND). This is a conservative assumption, which is likely to result in overestimation of the mean concentration.
\4\ ``Pass'' for the Paint Filter Test means that the sludge samples contained no free liquids.

    EPA concluded after reviewing BMW's waste management and waste 
history information that no other hazardous constituents, other than 
those tested for, are likely to be present in BMW's petitioned waste. 
In addition, on the basis of test results and other information 
provided by BMW, pursuant to section 260.22, EPA concluded that the 
petitioned waste will not exhibit any of the characteristics of 
ignitability, corrosivity, or reactivity. See Secs. 261.21, 261.22, and 
261.23, respectively.
    During its evaluation of BMW's petition, EPA also considered the 
potential impact of the petitioned waste on media other than 
groundwater. With regard to airborne dispersal of waste, EPA evaluated 
the potential hazards resulting from airborne exposure to waste 
contaminants from the petitioned waste using an air dispersion model 
for releases from a landfill. The results of this evaluation indicated 
that there is no substantial present or potential hazard to human 
health from airborne exposure to constituents from BMW's petitioned 
waste. (A description of EPA's assessment of the potential impact of 
airborne dispersal of BMW's petitioned waste is presented in the RCRA 
public docket for today's proposed rule.)
    EPA evaluated the potential impact of the petitioned waste on 
surface water resulting from storm water runoff from a landfill 
containing the petitioned waste, and found that the waste would not 
present a threat to human health or the environment. (See the docket 
for today's proposed rule for a description of this analysis). In 
addition, EPA believes that containment structures at municipal solid 
waste landfills can effectively control runoff, as Subtitle D 
regulations (see 56 FR 50978, October 9, 1991) prohibit pollutant 
discharges into surface waters. While some contamination of surface 
water is possible through runoff from a waste disposal area, EPA 
believes that the dissolved concentrations of hazardous constituents in 
the runoff are likely to be lower than the extraction procedure test 
results reported in today's proposed rule, because of the aggressive 
acidic medium used for extraction in the TCLP. EPA also believes that, 
in general, leachate derived from the waste will not directly enter a 
surface water body without first traveling through the saturated 
subsurface where dilution of hazardous constituents may occur. 
Transported contaminants would be further diluted in the receiving 
water body. Subtitle D controls would minimize significant releases to 
surface water from erosion of undissolved particulates in runoff.

B. What Delisting Levels Did EPA Obtain With the EPACML Model and with 
DRAS?

    In order to account for possible variability in the generation 
rate, EPA calculated delisting levels using a maximum generation rate 
of 2,400 tons per year. EPA converted the 2,400 tons to a waste volume 
of 2,850 cubic yards, by using BMW's conservative estimate that the 
density of the sludge is approximately equal to the density of water. 
While the sludge is certainly more dense than water, using the lower 
density results in a higher value for the waste volume, and a lower, 
more conservative, Dilution Attenuation Factor (DAF). Table 2 below is 
a table of waste volumes in cubic yards and the corresponding DAFs from 
the EPACML model. EPA obtained a DAF of 70 from Table 2, for BMW's 
petitioned waste.

 Table 2.--Dilution/Attenuation Factors (DAFs) for Landfills Calculated
               by the EPACML Model, Modified for Delisting
------------------------------------------------------------------------
                                                             DAF (95th
        Waste volume in cubic yards per year \1\            percentile)
----------------------------------------------------------------\2\-----
1,000...................................................         \3\ 100
1,250...................................................              96
1,500...................................................              90
1,750...................................................              84
2,000...................................................              79
2,500...................................................              74
3,000...................................................              68
4,000...................................................              57
5,000...................................................              54
6,000...................................................              48
7,000...................................................              45
8,000...................................................              43
9,000...................................................              40
10,000..................................................              36
12,500..................................................              33
15,000..................................................              29
20,000..................................................              27
25,000..................................................              24
30,000..................................................              23
40,000..................................................              20
50,000..................................................              19
60,000..................................................              17
80,000..................................................              17
90,000..................................................              16
100,000.................................................              15
150,000.................................................              14
200,000.................................................              13
250,000.................................................              12
300,000.................................................             12
------------------------------------------------------------------------
\1\ The waste volume includes a scaling factor of 20 (56 FR 32993, July
  18, 1991; and 56 FR 67197, Dec. 30, 1991), where the annual volume of
  waste in the table is assumed to be sent to a landfill every year for
  20 years.
\2\ The DAFs calculated by the EPACML are a probability distribution
  based on a range of values for each model input parameter; the input
  parameters include such variables as landfill size, climatic data, and
  hydrogeologic data. The 95th percentile DAF represents a value in
  which one can have 95% confidence that a contaminant's concentration
  will be reduced by a factor equal to the DAF, as the contaminant moves
  from the bottom of the landfill through the subsurface environment to
  a receptor well. For example, if the 95th percentile DAF is 10, and
  the leachate concentration of cadmium at the bottom of the landfill is
  0.05 mg/l, one can be 95% confident that the receptor well
  concentration of cadmium will not exceed 0.005 mg/l. See 55 FR 11826,
  March 29, 1990; 56 FR 32993, July 18, 1991; and 56 FR 67197, December
  30, 1991.
\3\ DAF cutoff is 100, corresponding to the Toxicity Characteristic Rule
  (55 FR 11826, March 29, 1990).

    Table 3A below is a table of EPACML delisting levels for each 
constituent of concern in BMW's petitioned waste. The constituents of 
concern are barium, cadmium, chromium, cyanide, lead, and nickel, and 
the EPACML DAF is 70 for the maximum estimated volume.

    Table 3A.--Delisting Levels Calculated From EPACML Model for BMW
                            Petitioned Waste
------------------------------------------------------------------------
                                                               Delisting
                   Constituent                    MCL \1\(mg/ level (mg/
                                                      l)        l TCLP)
------------------------------------------------------------------------
Barium..........................................       2        <SUP>2</SUP> 100
Cadmium.........................................       0.005        0.35
Chromium........................................       0.10       <SUP>2</SUP> 5
Cyanide.........................................       0.20      <SUP>3</SUP> 14
Lead............................................     <SUP>4</SUP> 0.015        1.05

[[Page 9793]]

 
Nickel..........................................     <SUP>5</SUP> 0.73       51
------------------------------------------------------------------------
<SUP>1</SUP> See the ``Docket Report on Health-based Levels and Solubilities Used
  in the Evaluation of Delisting Petitions, Submitted Under 40 CFR
  260.20 and 260.22,'' December 1994, located in the RCRA public docket,
  for the Agency's methods of calculating health-based levels for
  evaluating delisting petitions from MCLs, and when MCLs are not
  available.
<SUP>2</SUP> The Toxicity Characteristic (TC) regulatory level in 40 CFR 261.24 for
  chromium is 5 mg/l and for barium is 100 mg/l. Therefore, for
  chromium, although a DAF of 70 times 0.10 equals 7, the delisting
  level cannot be greater than 5 mg/l because a delisted waste must not
  exhibit a hazardous characteristic. For the same reason, the delisting
  level for barium cannot be 70 times 2, equal to 140, but must not be
  greater than 100, the TC regulatory level for barium.
<SUP>3</SUP> The TCLP is to be followed for cyanide, except that deionized water
  must be used as the leaching medium, instead of the acetic acid or
  acetate buffer specified in the TCLP. SW-846 Method 9010 or 9012 must
  be used to measure cyanide concentration in the deionized water
  leachate.
<SUP>4</SUP> This value is an action level for a Publicly Owned Treatment Works,
  rather than a MCL.
<SUP>5</SUP> This value is a value that is protective of tap water, obtained from
  EPA Region 9's Preliminary Remediation Goals Tables. Internet address
  is: http://www.epa.gov/region09/waste/sfund/prg/s1_05.htm

    Delisting levels and risk levels calculated by DRAS, using the 
EPACMTP model, are presented in Table 3B below. DRAS found that the 
major pathway for human exposure to this waste is groundwater 
ingestion, and calculated delisting and risk levels based on that 
pathway. The input values required by DRAS were the chemical 
constituents in BMW's petitioned waste; their maximum reported 
concentrations in the TCLP extract of the waste and in the unextracted 
waste (Values for the South Carolina plant in Table 1B, Preamble 
Section II.A.); the maximum annual volume to be disposed (2,850 cubic 
yards) in a landfill; the desired risk level, which was chosen to be no 
worse than 10<SUP>-6</SUP> for carcinogens; and a hazard quotient of no 
greater than 1 for non-carcinogens. The only carcinogenic constituent 
in the waste is cadmium, and cadmium also has non-carcinogenic toxic 
effects. Allowable total concentrations in the waste, as calculated by 
DRAS for the waste, itself, not the TCLP leachate, were all at least 
1,000 times greater than the actual maximum total concentrations found 
in the waste, and are not included in Table 3B, since many amount to 
metal or cyanide concentrations of several per cent. However, in 
addition to limits on the concentrations of constituents in the TCLP 
leachate of the petitioned waste, EPA does propose to set the following 
limits on total concentrations, in units of milligrams of constituent 
per kilogram of unextracted waste (mg/kg): Barium: 2,000; Cadmium: 500; 
Chromium: 1,000; Cyanide (Total, not Amenable): 200; Lead: 2,000; and 
Nickel: 20,000. EPA asks for public comment on these limits which were 
chosen to be both protective of human health and the environment and to 
be realistic, attainable values for wastewater treatment sludges that 
contain metals and cyanide. The maximum reported total concentrations 
for BMW's petitioned waste were all below these limits. The limit for 
cyanide was chosen so that the waste could not exhibit the reactivity 
characteristic for cyanide by exceeding the interim guidance for 
reactive cyanide of 250 mg/kg of releasable hydrogen cyanide (SW-846, 
Chapter Seven, Section 7.3.3.)

       Table 3B.--Delisting and Risk Levels Calculated by DRAS With EPACMTP Model for BMW Petitioned Waste
----------------------------------------------------------------------------------------------------------------
                                                                                                DRAS-calculated
                                                                            DRAS-calculated     hazard quotient
                                 Delisting level (mg/                      risk for maximum       for maximum
          Constituent                 l of TCLP)              DAF            concentration     concentration of
                                                                             carcinogen in     non-carcinogen in
                                                                                 waste               waste
----------------------------------------------------------------------------------------------------------------
Barium.........................  <SUP>1</SUP> 182                69.2                ..................  4.87  x  10<SUP>-2</SUP>
Cadmium........................  <SUP>1</SUP> 1.4                74.6                1.62  x  10<SUP>-13</SUP>      3.57  x  10<SUP>-2</SUP>
Chromium.......................  <SUP>1</SUP> 5.39  x  10<SUP>-5</SUP>      9,580               ..................  5.8  x  10<SUP>-7</SUP>
Cyanide........................  33.6                 44.8                ..................  1.49  x  10<SUP>-3</SUP>
Lead...........................  187                  1.24  x  10<SUP>-4</SUP>       ..................  Not calculable; no
                                                                                               reference dose
                                                                                               for lead
Nickel.........................  70.3                 93.5                ..................  8.9  x  10<SUP>-2</SUP>
Total Hazard Quotient for All    ...................  ..................  ..................  0.187
 Waste Constituents.
Total Carcinogenic Risk for the  ...................  ..................  1.62  x  10<SUP>-13</SUP>      ..................
 Waste (due to Cadmium).
----------------------------------------------------------------------------------------------------------------
<SUP>1</SUP> These levels are all greater than the Toxicity Characteristic (TC) regulatory level in 40 CFR 261.24. A waste
  cannot be delisted if it exhibits a hazardous characteristic; therefore, the delisting level for each of these
  constituents could not be greater than the TC level of 100 for Barium; 1.0 for Cadmium; 5.0 for Chromium; and
  5.0 for Lead.

    EPA proposes to use the delisting levels in the TCLP leachate 
calculated by the older method using the EPACML DAF for BMW's 
petitioned waste, because the EPACML levels are more conservative for 
this waste. EPA requests public comment on the proposal to use the 
delisting levels obtained with the EPACML DAF instead of those 
calculated by the DRAS, using the EPACMTP, in combination with the 
limits on total concentrations proposed in the paragraph preceding 
Table 3B.

C. How Did EPA Use the Multiple Extraction Procedure (MEP) to Evaluate 
This Delisting Petition?

    EPA developed the MEP test (SW-846 Method 1320) to help predict the 
long-term resistance to leaching of stabilized wastes, which are wastes 
that have been treated to reduce the leachability of hazardous 
constituents. The MEP consists of a TCLP extraction of a sample 
followed by nine sequential extractions of the same sample, using a 
synthetic acid rain extraction fluid (prepared by adding a 60/40 weight 
mixture of sulfuric acid and nitric acid to distilled deionized water 
until the pH is 3.0 <plus-minus> 0.2). The sample which is subjected to 
the nine sequential extractions consists of the solid phase remaining 
after, and separated from, the initial TCLP extract. EPA designed the 
MEP to simulate multiple washings of

[[Page 9794]]

percolating rainfall in the field, and estimates that these extractions 
simulate approximately 1,000 years of rainfall. (See 47 FR 52687, Nov. 
22, 1982.) MEP results are presented in Table 4 below. In response to a 
request by EPA for additional information, BMW reported the following 
practical quantitation limits in the MEP test: 0.001 mg/l for cadmium, 
0.003 mg/l for lead, 0.01 mg/l for nickel, and 0.02 for zinc. Table 4 
presents the results of analysis of MEP extracts.
    The MEP data in Table 4 indicate that the petitioned waste would be 
expected to leach metals at low and decreasing concentrations for a 
period of at least 100 years, and only about 10 per cent of the amount 
of metal in the waste would leach during this time period. \11\ The 
average life of a landfill is approximately 20 years. (See 56 FR 32993, 
July 18, 1991; and 56 FR 67197, Dec. 30, 1991.)
---------------------------------------------------------------------------

    \11\ This estimate is based on the following calculation for 
nickel: % nickel leached out over more than 100 years = 100  x  
(total number of milligrams of nickel in all the sample MEP 
extracts) <divide> the number of milligrams of nickel in the 100-
gram sample that was extracted by the MEP: 100  x  2  x  ( 5.22 
+0.299 + 0.234 + 0.654 + 0.267 + 0.084 + 0.059+ 0.018+ .028+ .01) 
<divide> 140 = 100  x  13.746 <divide>140 = 9.8%.
---------------------------------------------------------------------------

    The MEP pH data in Table 4 indicate that the pH of the petitioned 
waste would be expected to lose its alkalinity over a period of years. 
However, the amount of metal in the leachate remains similar to or 
lower than the initial TCLP results, and decreases over time.

        Table 4.--Multiple Extraction Procedure (SW-846 Method 1320) Results for BMW'S Petitioned Waste <SUP>1</SUP>
----------------------------------------------------------------------------------------------------------------
                                                                                                   pH <SUP>2</SUP> (before/
           Extract No.             Cadmium  (Cd)    Lead  (Pb)     Nickel  (Ni)     Zinc  (Zn)        after)
----------------------------------------------------------------------------------------------------------------
1 (TCLP)........................         0.001           0.157           5.22            4.02            8.0/5.7
2 (first extraction of the MEP).       <SUP>1</SUP> 0.001 U         0.003 U         0.299           0.165           5.6/6.5
3...............................         0.001 U         0.003 U         0.234           0.088           5.4/6.6
4...............................         0.001 U         0.003 U         0.654           3.25            3.0/6.6
5...............................         0.001 U         0.003 U         0.267           5.61            3.0/3.9
6...............................         0.001 U         0.007           0.084           1.47            3.5/3.9
7...............................         0.001           0.003 U         0.059           0.603           3.2/3.3
8...............................         0.001 U         0.003 U         0.018           0.222           3.1/3.2
9...............................         0.001 U         0.003           0.028           0.139           2.9/3.1
10..............................         0.001 U         0.003 U         0.010 U         0.073          3.0/3.3
----------------------------------------------------------------------------------------------------------------
<SUP>1</SUP> U = Not detected to level shown.
<SUP>2</SUP> pH is a measure of the negative logarithm of the hydrogen ion activity in an aqueous solution, and is a
  measure of how acidic or basic (alkaline) a solution is. At 25 deg.C, solutions with pH values less than 7 are
  acidic; greater than 7 are basic (alkaline); and a pH value of 7 indicates a neutral solution. In general,
  metals and their compounds are less soluble in basic (alkaline) solutions. ``Start'' means pH at start of the
  extraction and ``Finish'' means pH at the end of the extraction.

D. Conclusion

    After reviewing BMW's processes, the EPA concludes that (1) no 
hazardous constituents of concern are likely to be present in BMW's 
waste at levels that would harm human health and the environment; and 
(2) the petitioned waste does not exhibit any of the characteristics of 
ignitability, corrosivity, or reactivity. See 40 CFR 261.21, 261.22, 
and 261.23, respectively.
    EPA believes that BMW's petitioned waste will not harm human health 
and the environment when disposed in a nonhazardous waste landfill if 
the delisting levels for land disposal as proposed in Preamble section 
II.B. are met.
    EPA proposes to exclude BMW's petitioned waste from being listed as 
F019, based on descriptions of waste management and waste history, 
evaluation of the results of waste sample analysis, and on the 
requirement that BMW's petitioned waste must meet proposed delisting 
levels before disposal. Thus, EPA's proposed decision is based on 
verification testing conditions. If the proposed rule becomes 
effective, the exclusion will be valid only if the petitioner 
demonstrates that the petitioned waste meets the verification testing 
conditions and delisting levels in the amended Table 1 of appendix IX 
of 40 CFR part 261. If the proposed rule becomes final and EPA approves 
that demonstration, the petitioned waste would not be subject to 
regulation under 40 CFR parts 262 through 268 and the permitting 
standards of 40 CFR part 270. Although management of the waste covered 
by this petition would, upon final promulgation, be relieved from 
Subtitle C jurisdiction, the waste would remain a solid waste under 
RCRA. As such, the waste must be handled in accordance with all 
applicable Federal, State, and local solid waste management 
regulations. Pursuant to RCRA section 3007, EPA may also sample and 
analyze the waste to determine if delisting conditions are met.

III. Limited Effect of Federal Exclusion

Will This Rule Apply in All States?

    This proposed rule, if promulgated, would be issued under the 
Federal (RCRA) delisting program. States, however, are allowed to 
impose their own, non-RCRA regulatory requirements that are more 
stringent than EPA's, pursuant to section 3009 of RCRA. These more 
stringent requirements may include a provision which prohibits a 
Federally issued exclusion from taking effect in the States. Because a 
petitioner's waste may be regulated under a dual system (i.e., both 
Federal and State programs), petitioners are urged to contact State 
regulatory authorities to determine the current status of their wastes 
under the State laws. Furthermore, some States are authorized to 
administer a delisting program in lieu of the Federal program, i.e., to 
make their own delisting decisions. Therefore, this proposed exclusion, 
if promulgated, would not apply in those authorized States. If the 
petitioned waste will be transported to any State with delisting 
authorization, BMW must obtain delisting authorization from that State 
before the waste may be managed as nonhazardous in that State.

IV. Effective Date

    This rule, if made final, will become effective immediately upon 
final publication. The Hazardous and Solid Waste Amendments of 1984 
amended section 3010 of RCRA to allow rules to become effective in less 
than six months when the regulated community does not need the six-
month period to come into compliance. That is the case here, because 
this rule, if finalized, would reduce the existing requirements for the

[[Page 9795]]

petitioner. In light of the unnecessary hardship and expense that would 
be imposed on this petitioner by an effective date six months after 
publication and the fact that a six-month deadline is not necessary to 
achieve the purpose of section 3010, EPA believes that this exclusion 
should be effective immediately upon final publication. These reasons 
also provide a basis for making this rule effective immediately, upon 
final publication, under the Administrative Procedure Act, pursuant to 
5 U.S.C. 553(d).

V. Paperwork Reduction Act

    Information collection and record-keeping requirements associated 
with this proposed rule have been approved by the Office of Management 
and Budget (OMB) under the provisions of the Paperwork Reduction Act of 
1980 (Public Law 96-511, 44 U.S.C. 3501 et seq.) and have been assigned 
OMB Control Number 2050-0053.

VI. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This proposed rulemaking involves environmental monitoring or 
measurement. Consistent with the Agency's Performance Based Measurement 
System (``PBMS''), EPA proposes not to require the use of specific, 
prescribed analytical methods, except when required by regulation in 40 
CFR parts 260 through 270. Rather the Agency plans to allow the use of 
any method that meets the prescribed performance criteria. The PBMS 
approach is intended to be more flexible and cost-effective for the 
regulated community; it is also intended to encourage innovation in 
analytical technology and improved data quality. EPA is not precluding 
the use of any method, whether it constitutes a voluntary consensus 
standard or not, as long as it meets the performance criteria 
specified.

VII. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``UMRA''), Public Law 104-4, which was signed into law on March 22, 
1995, EPA generally must prepare a written statement for rules with 
Federal mandates that may result in estimated costs to State, local, 
and tribal governments in the aggregate, or to the private sector, of 
$100 million or more in any one year. When such a statement is required 
for EPA rules, under section 205 of the UMRA EPA must identify and 
consider alternatives, including the least costly, most cost-effective 
or least burdensome alternative that achieves the objectives of the 
rule. EPA must select that alternative, unless the Administrator 
explains in the final rule why it was not selected or it is 
inconsistent with law. Before EPA establishes regulatory requirements 
that may significantly or uniquely affect small governments, including 
tribal governments, it must develop under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, giving them meaningful and 
timely input in the development of EPA regulatory proposals with 
significant Federal intergovernmental mandates, and informing, 
educating, and advising them on compliance with the regulatory 
requirements.
    The UMRA generally defines a Federal mandate for regulatory 
purposes as one that imposes an enforceable duty upon State, local, or 
tribal governments or the private sector. EPA finds that today's 
proposed delisting decision is deregulatory in nature and does not 
impose any enforceable duty on any State, local, or tribal governments 
or the private sector. In addition, the proposed delisting does not 
establish any regulatory requirements for small governments and so does 
not require a small government agency plan under UMRA section 203.

VIII. Regulatory Flexibility Act, as Amended by the Small Business 
Regulatory Enforcement and Fairness Act

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612, 
whenever an agency is required to publish a general notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the impact of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
No regulatory flexibility analysis is required, however, if the 
Administrator or delegated representative certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities.
    This rule, if promulgated, will not have an adverse economic impact 
on any small entities since its effect would be to reduce the overall 
costs of EPA's hazardous waste regulations and would be limited to one 
facility. Accordingly, I hereby certify that this proposed regulation, 
if promulgated, will not have a significant economic impact on a 
substantial number of small entities. This regulation, therefore, does 
not require a regulatory flexibility analysis.

IX. Executive Order 12866

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities or the principles set forth in the 
Executive Order.
    OMB has exempted this proposed rule from the requirement for OMB 
review under section (6) of Executive Order 12866.

X. Executive Order 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,

[[Page 9796]]

and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency. This rule is not subject to Executive Order 13045 
because this is not an economically significant regulatory action as 
defined by Executive Order 12866.

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 
the communities of Indian tribal governments, and that imposes 
substantial direct compliance costs on those communities, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. If the mandate is 
unfunded, EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to meaningful and timely input'' in the 
development of regulatory policies on matters that significantly or 
uniquely affect their communities of Indian tribal governments. Today's 
proposed rulemaking does not significantly or uniquely affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this proposed 
rule.

XII. Submission to Congress and General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of Congress and to the Comptroller General of the United 
States.
    The EPA is not required to submit a rule report regarding today's 
action under section 801 because this is a rule of particular 
applicability, etc. Section 804 exempts from section 801 the following 
types of rules: rules of particular applicability; rules relating to 
agency management or personnel; and rules of agency organization, 
procedures, or practice that do not substantially affect the rights or 
obligations of non-agency parties. See 5 U.S.C. 804(3). This rule will 
become effective on the date of publication as a final rule in the 
Federal Register.

XIII. Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999) requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.''
    ``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that impose substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. The EPA also may not issue a 
regulation that has federalism implications and that preempts State law 
unless the Agency consults with State and local officials early in the 
process of developing the proposed regulation.
    This action does not have federalism implication. It will not have 
a substantial direct effect on States, on the relationship between the 
national government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132, because it affects only one facility.

List of Subjects in 40 CFR Part 261

    Hazardous waste, Recycling, Reporting and recordkeeping 
requirements.

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

    Dated: January 4, 2001.
Jewell Grubbs,
Acting Director, Waste Management Division.

    For the reasons set out in the preamble, 40 CFR part 261 is 
proposed to be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for part 261 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

    2. In Table 1 of appendix IX, part 261 add the following 
wastestream in alphabetical order by facility to read as follows:

Appendix IX--Wastes Excluded Under Secs. 260.20 and 260.22.

                               Table 1.--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
             Facility                             Address                           Waste description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
BMW Manufacturing Corporation.....  Greer, South Carolina.............  Wastewater treatment sludge (EPA
                                                                         Hazardous Waste No. F019) that BMW
                                                                         Manufacturing Corporation (BMW)
                                                                         generates by treating wastewater from
                                                                         automobile assembly plant located on
                                                                         Highway 101 South in Greer, South
                                                                         Carolina. This is a conditional
                                                                         exclusion for up to 2,850 cubic yards
                                                                         of waste (hereinafter referred to as
                                                                         ``BMW Sludge'') that will be generated
                                                                         each year and disposed in a Subtitle D
                                                                         landfill after [insert date of final
                                                                         rule.] With prior approval by the EPA,
                                                                         following a public comment period, BMW
                                                                         may also beneficially reuse the sludge.
                                                                         BMW must demonstrate that the following
                                                                         conditions are met for the exclusion to
                                                                         be valid.

[[Page 9797]]

 
                                                                        (1) Delisting Levels: All leachable
                                                                         concentrations for these metals and
                                                                         cyanide must not exceed the following
                                                                         levels (ppm): Barium--100; Cadmium--
                                                                         0.35; Chromium--5; Cyanide--14, Lead--
                                                                         1.05; and Nickel--51. These metal and
                                                                         cyanide concentrations must be measured
                                                                         in the waste leachate obtained by the
                                                                         method specified in 40 CFR 261.24,
                                                                         except that for cyanide, deionized
                                                                         water must be the leaching medium. The
                                                                         total concentration of cyanide (total,
                                                                         not amenable) in the waste, not the
                                                                         waste leachate, must not exceed 200 mg/
                                                                         kg. Cyanide concentrations in waste or
                                                                         leachate must be measured by the method
                                                                         specified in 40 CFR 268.40, Note 7. The
                                                                         total concentrations of metals in the
                                                                         waste, not the waste leachate, must not
                                                                         exceed the following levels (ppm):
                                                                         Barium--2,000; Cadmium--500; Chromium--
                                                                         1,000; Lead--2,000; and Nickel--20,000.
                                                                        (2) Verification Testing Requirements:
                                                                         Sample collection and analyses,
                                                                         including quality control procedures,
                                                                         must be performed according to SW-846
                                                                         methodologies, where specified by
                                                                         regulations in 40 CFR Parts 260-270.
                                                                         Otherwise, methods must meet
                                                                         Performance Based Measurement System
                                                                         Criteria in which the Data Quality
                                                                         Objectives are to demonstrate that
                                                                         representative samples of the BMW
                                                                         Sludge meet the delisting levels in
                                                                         Condition (1).
                                                                        (A) Initial Verification Testing: BMW
                                                                         must conduct verification sampling
                                                                         initially when test runs of aluminum
                                                                         vehicle parts are run and again when
                                                                         production of vehicles with aluminum
                                                                         body parts commences. For verification
                                                                         sampling during the test runs, BMW must
                                                                         collect and analyze a minimum of four
                                                                         composite samples of the dewatered
                                                                         sludge that is generated from
                                                                         wastewater treated during the time of
                                                                         the test runs. For verification
                                                                         sampling at the initiation of the
                                                                         production of vehicle models with
                                                                         aluminum parts, BMW must collect a
                                                                         minimum of four composite samples from
                                                                         the first roll-off box of sludge
                                                                         generated after production of
                                                                         automobiles with aluminum parts reaches
                                                                         50 units per day. BMW must analyze for
                                                                         the constituents listed in Condition
                                                                         (1). If BMW chooses to beneficially
                                                                         reuse sludge, and the reuse has been
                                                                         approved by EPA, following a public
                                                                         comment period, verification testing of
                                                                         the sludge must consist of analyzing a
                                                                         minimum of four composite samples of
                                                                         the sludge for the constituents listed
                                                                         in Condition (1).
                                                                        (B) Subsequent Verification Testing: If
                                                                         the initial verification testing in
                                                                         Condition (2)(A) is successful for both
                                                                         the test runs and the commencement of
                                                                         production, i.e., delisting levels of
                                                                         Condition (1) are met for all of the
                                                                         composite samples, BMW must implement
                                                                         an annual testing program to
                                                                         demonstrate that constituent
                                                                         concentrations measured in the TCLP
                                                                         extract and total concentrations
                                                                         measured in the unextracted waste do
                                                                         not exceed the delisting levels
                                                                         established in Condition (1).
                                                                        (3) Waste Holding and Handling: BMW must
                                                                         store as hazardous all BMW Sludge
                                                                         generated until verification testing,
                                                                         as specified in Condition (2)(A), is
                                                                         completed and valid analyses
                                                                         demonstrate that Condition (1) is
                                                                         satisfied. If the levels of
                                                                         constituents measured in the composite
                                                                         samples of BMW Sludge do not exceed the
                                                                         levels set forth in Condition (1), then
                                                                         the BMW Sludge is non-hazardous and
                                                                         must be managed in accordance with all
                                                                         applicable solid waste regulations. If
                                                                         constituent levels in a composite
                                                                         sample exceed any of the delisting
                                                                         levels set forth in Condition (1), the
                                                                         batch of BMW Sludge generated during
                                                                         the time period corresponding to this
                                                                         sample must be managed and disposed of
                                                                         in accordance with Subtitle C of RCRA.
                                                                        (4) Changes in Operating Conditions: BMW
                                                                         must notify EPA in writing when
                                                                         significant changes in the
                                                                         manufacturing or wastewater treatment
                                                                         processes are implemented. EPA will
                                                                         determine whether these changes will
                                                                         result in additional constituents of
                                                                         concern. If so, EPA will notify BMW in
                                                                         writing that the BMW Sludge must be
                                                                         managed as hazardous waste F019 until
                                                                         BMW has demonstrated that the wastes
                                                                         meet the delisting levels set forth in
                                                                         Condition (1) and any levels
                                                                         established by EPA for the additional
                                                                         constituents of concern, and BMW has
                                                                         received written approval from EPA. If
                                                                         EPA determines that the changes do not
                                                                         result in additional constituents of
                                                                         concern, EPA will notify BMW, in
                                                                         writing, that BMW must verify that the
                                                                         BMW Sludge continues to meet Condition
                                                                         (1) delisting levels.

[[Page 9798]]

 
                                                                        (5) Data Submittals: Data obtained in
                                                                         accordance with Condition (2)(A) must
                                                                         be submitted to Jewell Grubbs, Chief,
                                                                         RCRA Enforcement and Compliance Branch,
                                                                         Mail Code: 4WD-RCRA, U.S. EPA, Region
                                                                         4, Sam Nunn Atlanta Federal Center, 61
                                                                         Forsyth Street, Atlanta, Georgia 30303.
                                                                         This submission is due no later than 60
                                                                         days after filling the first roll-off
                                                                         box of BMW Sludge to be disposed in
                                                                         accordance with delisting Conditions
                                                                         (1) through (7) for both the test runs
                                                                         and again for the commencement of
                                                                         production. Records of analytical data
                                                                         from Condition (2) must be compiled,
                                                                         summarized, and maintained by BMW for a
                                                                         minimum of three years, and must be
                                                                         furnished upon request by EPA or the
                                                                         State of South Carolina, and made
                                                                         available for inspection. Failure to
                                                                         submit the required data within the
                                                                         specified time period or maintain the
                                                                         required records for the specified time
                                                                         will be considered by EPA, at its
                                                                         discretion, sufficient basis to revoke
                                                                         the exclusion to the extent directed by
                                                                         EPA. All data must be accompanied by a
                                                                         signed copy of the certification
                                                                         statement in 40 CFR 260.22(i)(12).
                                                                        (6) Reopener Language: (A) If, at any
                                                                         time after disposal of the delisted
                                                                         waste, BMW possesses or is otherwise
                                                                         made aware of any environmental data
                                                                         (including but not limited to leachate
                                                                         data or groundwater monitoring data) or
                                                                         any other data relevant to the delisted
                                                                         waste indicating that any constituent
                                                                         identified in the delisting
                                                                         verification testing is at a level
                                                                         higher than the delisting level allowed
                                                                         by EPA in granting the petition, BMW
                                                                         must report the data, in writing, to
                                                                         EPA within 10 days of first possessing
                                                                         or being made aware of that data. (B)
                                                                         If the testing of the waste, as
                                                                         required by Condition (2)(B), does not
                                                                         meet the delisting requirements of
                                                                         Condition (1), BMW must report the
                                                                         data, in writing, to EPA within 10 days
                                                                         of first possessing or being made aware
                                                                         of that data. (C) Based on the
                                                                         information described in paragraphs
                                                                         (6)(A) or (6)(B) and any other
                                                                         information received from any source,
                                                                         EPA will make a preliminary
                                                                         determination as to whether the
                                                                         reported information requires that EPA
                                                                         take action to protect human health or
                                                                         the environment. Further action may
                                                                         include suspending or revoking the
                                                                         exclusion, or other appropriate
                                                                         response necessary to protect human
                                                                         health and the environment. (D) If EPA
                                                                         determines that the reported
                                                                         information does require Agency action,
                                                                         EPA will notify the facility in writing
                                                                         of the action believed necessary to
                                                                         protect human health and the
                                                                         environment. The notice shall include a
                                                                         statement of the proposed action and a
                                                                         statement providing BMW with an
                                                                         opportunity to present information as
                                                                         to why the proposed action is not
                                                                         necessary. BMW shall have 10 days from
                                                                         the date of EPA's notice to present
                                                                         such information.
                                                                        (E) Following the receipt of information
                                                                         from BMW, as described in paragraph
                                                                         (6)(D), or if no such information is
                                                                         received within 10 days, EPA will issue
                                                                         a final written determination
                                                                         describing the Agency actions that are
                                                                         necessary to protect human health or
                                                                         the environment, given the information
                                                                         received in accordance with paragraphs
                                                                         (6)(A) or (6)(B). Any required action
                                                                         described in EPA's determination shall
                                                                         become effective immediately, unless
                                                                         EPA provides otherwise.
                                                                        (7) Notification Requirements: BMW must
                                                                         provide a one-time written notification
                                                                         to any State Regulatory Agency in a
                                                                         State to which or through which the
                                                                         delisted waste described above will be
                                                                         transported, at least 60 days prior to
                                                                         the commencement of such activities.
                                                                         Failure to provide such a notification
                                                                         will result in a violation of the
                                                                         delisting conditions and a possible
                                                                         revocation of the decision to delist.
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 01-1049 Filed 2-9-01; 8:45 am]
BILLING CODE 6560-50-P


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