Federal Register / Vol. 66, No. 85 / Wednesday, May 2, 2001 / Rules and Regulations 21877

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

August 10, 1999), because it merely

approves a state rule implementing a

federal standard, and does not alter the

relationship or the distribution of power

and responsibilities established in the

Clean Air Act. This rule also is not

subject to Executive Order 13045 (62 FR

19885, April 23, 1997), because it is not

economically significant.

In reviewing SIP submissions, EPA’s

role is to approve state choices,

provided that they meet the criteria of

the Clean Air Act. In this context, in the

absence of a prior existing requirement

for the State to use voluntary consensus

standards (VCS), EPA has no authority

to disapprove a SIP submission for

failure to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission,

to use VCS in place of a SIP submission

that otherwise satisfies the provisions of

the Clean Air Act. Thus, the

requirements of section 12(d) of the

National Technology Transfer and

Advancement Act of 1995 (15 U.S.C.

272 note) do not apply. As required by

section 3 of Executive Order 12988 (61

FR 4729, February 7, 1996), in issuing

this rule, EPA has taken the necessary

steps to eliminate drafting errors and

ambiguity, minimize potential litigation,

and provide a clear legal standard for

affected conduct. EPA has complied

with Executive Order 12630 (53 FR

8859, March 15, 1988) by examining the

takings implications of the rule in

accordance with the ‘‘Attorney

General’s Supplemental Guidelines for

the Evaluation of Risk and Avoidance of

Unanticipated Takings’’ issued under

the executive order. This rule does not

impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (44

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

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a ‘‘major rule’’ as

defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by July 2, 2001.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Permitting, and Reporting and

recordkeeping requirements.

Dated: February 9, 2001.

Laura Yoshii,

Acting Regional Administrator, Region IX.

Part 52, chapter I, Title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for Part 52

continues to read as follows:

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

Subpart F—California

2. Section 52.220 is amended by

adding paragraphs (c)(54)(viii)(C),

(c)(86)(ii)(B), (c)(124)(xii)(B),

(c)(138)(i)(B), (c)(168)(i)(A)(4),

(c)(222)(i)(E), (c)(230)(i)(E), and

(c)(231)(i)(D) to read as follows:

§ 52.220 Identification of plan.

* * * * *

(c) * * *

(54) * * *

(viii) * * *

(C) Previously approved on May 27,

1982 in paragraph (viii)(B) of this

section and now deleted Rules 4.5A and

4.5B.

* * * * *

(86) * * *

(ii) * * *

(B) Previously approved on May 27,

1982 in paragraph (ii)(A) of this section

and now deleted Rule 4.9.

* * * * *

(124) * * *

(xii) * * *

(B) Previously approved on June 1,

1983 in paragraph (xii)(A) of this section

and now deleted Rules 4–6 and 4–6A.

* * * * *

(138) * * *

(i) * * *

(B) Previously approved on November

18, 1983 in paragraph (i)(A) of this

section and now deleted without

replacement Rules 4–3 and Rule 4–11.

* * * * *

(168) * * *

(i) * * *

(A) * * *

(4) Rule 424, adopted on August 6,

1985.

* * * * *

(222) * * *

(i) * * *

(E) Butte County Air Quality

Management District.

(1) Rule 403, adopted on November 9,

1993.

* * * * *

(230) * * *

(i) * * *

(E) Butte County Air Quality

Management District.

(1) Rule 422, adopted on September

18, 1990.

* * * * *

(231) * * *

(i) * * *

(D) Butte County Air Quality

Management District.

(1) Rule 1105, adopted on February

15, 1996.

* * * * *

[FR Doc. 01–10649 Filed 5–1–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 261

[FRL–6968–6]

Hazardous Waste Management

System; Identification and Listing of

Hazardous Waste; Final Exclusion

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency (EPA or Agency) today is

granting a petition submitted by BMW

Manufacturing Corporation, Greer,

South Carolina (BMW), to exclude (or

‘‘delist’’) a certain hazardous waste from

the lists 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

21878 Federal Register / Vol. 66, No. 85 / Wednesday, May 2, 2001 / Rules and Regulations

1This manual may be down-loaded from Region

6’s Web Site at the following URL address: http:/

/www.epa.gov/earth1r6/6pd/rcra_c/pd-o/

dlistpdf.htm

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.

This action responds to BMW’s petition

to delist this waste on a generatorspecific basis from the hazardous waste

lists, and to public comments on the

proposed rule. EPA took into account all

public comments on the proposed rule

before setting the final delisting levels.

Final delisting levels in the waste

leachate are based on the EPA

Composite Model for Leachate

Migration with Transformation Products

as used in EPA, Region 6’s Delisting

Risk Assessment Software. Today’s rule

also sets limits on the total

concentration of each hazardous

constituent in the waste. In accordance

with the conditions specified in this

final rule, BMW’s petitioned waste is

excluded from the requirements of

hazardous waste regulations under

Subtitle C of the Resource Conservation

and Recovery Act (RCRA).

EFFECTIVE DATE: This rule is effective on

May 2, 2001.

ADDRESSES: The RCRA regulatory

docket for this final rule is located at the

EPA Library, U.S. Environmental

Protection Agency, Region 4, Sam Nunn

Atlanta Federal Center, 61 Forsyth

Street, S.W., Atlanta, Georgia 30303,

and is available for viewing from 9:00

a.m. to 4:00 p.m., Monday through

Friday, excluding Federal holidays.

The reference number for this docket

is R4–00–01–BMWF. The public may

copy material from any regulatory

docket at no cost for the first 100 pages,

and at a cost of $0.15 per page for

additional copies. For copying at the

South Carolina Department of Health

and Environmental Control, please see

below.

FOR FURTHER INFORMATION CONTACT: For

general and technical information

concerning this final rule, please contact

Judy Sophianopoulos, RCRA

Enforcement and Compliance Branch

(Mail Code 4WD–RCRA), U.S.

Environmental Protection Agency,

Region 4, Sam Nunn Atlanta Federal

Center, 61 Forsyth Street, S.W., 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. Questions may also be

e-mailed to Ms. Sophianopoulos at

sophianopoulos.judy@epa.gov. You may

also contact Cindy Carter, Appalachia III

District, South Carolina Department of

Health and Environmental Control

(SCDHEC), 975C North Church Street,

Spartanburg, South Carolina. If you

wish to copy documents at SCDHEC,

please contact Ms. Carter for copying

procedures and costs.

SUPPLEMENTARY INFORMATION: The

contents of today’s preamble are listed

in the following outline:

I. Background

A. What Is a Delisting Petition?

B. What Laws and Regulations Give EPA

the Authority to Delist Wastes?

C. What is the History of this Rulemaking?

II. Summary of Delisting Petition Submitted

by BMW Manufacturing Corporation,

Greer, South Carolina (BMW)

A. What Waste Did BMW Petition EPA to

Delist?

B. What Information Did BMW Submit to

Support This Petition?

III. EPA’s Evaluation and Final Rule

A. What Decision Is EPA Finalizing and

Why?

B. What Are the Terms of This Exclusion?

C. When Is the Delisting Effective?

D. How Does This Action Affect the States?

IV. Public Comments Received on the

Proposed Exclusion

A. Who Submitted Comments on the

Proposed Rule?

B. Comments and Responses From EPA

V. Regulatory Impact

VI. Congressional Review Act

VII. Executive Order 12875

I. Background

A. What Is a Delisting Petition?

A delisting petition is a request made

by a hazardous waste generator to

exclude one or more of his/her wastes

from the lists of RCRA-regulated

hazardous wastes in §§ 261.31, 261.32,

and 261.33 of Title 40 of the Code of

Federal Regulations (40 CFR 261.31,

261.32, and 261.33). The regulatory

requirements for a delisting petition are

in 40 CFR 260.20 and 260.22. EPA,

Region 6 has prepared a guidance

manual, Region 6 Guidance Manual for

the Petitioner,1 which is recommended

by EPA Headquarters in Washington,

DC and all EPA Regions.

B. 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 § 261.11 (a)(2) or (a)(3).

Discarded commercial chemical product

wastes which meet the listing criteria

are listed in § 261.33(e) and (f).

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, §§ 260.20

and 260.22 provide an exclusion

procedure, allowing persons to

demonstrate that a specific waste from

a particular generating facility should

not be regulated as a hazardous waste.

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 § 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

§ 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

40 CFR 261.3 (a)(2)(iv) and (c)(2)(i),

referred to as the ‘‘mixture’’ and

‘‘derived-from’’ rules, respectively. Such

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

Federal Register / Vol. 66, No. 85 / Wednesday, May 2, 2001 / Rules and Regulations 21879

2 ‘‘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.’’

3 ‘‘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.

Columbia vacated the ‘‘mixture/derivedfrom’’ 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 (b)(2) 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 §§ 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).

C. What Is the History of This

Rulemaking?

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

§ 261.31.2

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). As a result

of the EPA’s evaluation of BMW’s

petition, the Agency proposed to grant

a delisting to BMW, on February 12,

2001. See 66 FR 9781–9798, February

12, 2001, for details. Today’s

rulemaking addresses public comments

received on the proposed rule and

finalizes the proposed decision to grant

BMW’s petition for delisting.

II. Summary of Delisting Petition

Submitted by BMW Manufacturing

Corporation, Greer, South Carolina

(BMW)

A. What Waste Did BMW Petition EPA

To Delist?

BMW petitioned EPA, Region 4, on

June 2, 2000, to exclude a maximum

annual weight of 2,400 tons (2,850 cubic

yards) of its F019 waste, on a generatorspecific basis, from the lists of

hazardous wastes in 40 CFR part 261,

subpart D. 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

§ 261.31.

B. What Information Did BMW Submit

To Support This 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 from these wastes, obtained by

means of the Toxicity Characteristic

Leaching Procedure ((TCLP), SW–846

Method 1311 3); (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 analysis of the waste

currently generated at the plant in

Greer, South Carolina, by means of the

Multiple Extraction Procedure (MEP),

SW–846 Method 1320, in order to

evaluate the long-term resistance of the

waste to leaching in a landfill.

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 believe that the waste meets

the criteria of the listing.

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. Based on this

information, EPA identified the

following constituents of concern:

barium, cadmium, chromium, cyanide,

lead, and nickel. The maximum

reported concentrations of the toxicity

characteristic (TC) metals barium,

cadmium, chromium, and lead in the

21880 Federal Register / Vol. 66, No. 85 / Wednesday, May 2, 2001 / Rules and Regulations

4The term, ‘‘Subtitle D landfill,’’ refers to a

landfill that is licensed to land dispose

nonhazardous wastes, that is, wastes that are not

RCRA hazardous wastes. A Subtitle D landfill is

subject to federal standards in 40 CFR parts 257 and

258 and to state and local regulations for

nonhazardous wastes and nonhazardous waste

landfills.

5 Delisting levels cannot exceed the Toxicity

Characteristic (TC) regulatory levels. Therefore,

although the DRAS EPACMTP calculates higher

concentrations (see the proposed rule, 66 FR 9793,

February 12, 2001, and Table 1, below), the

delisting levels in the final rule are set at the TC

levels for barium, cadmium, chromium, and lead.

In order for the waste to be delisted, concentrations

in the TCLP extract of the waste must be less than

the TC levels. See the regulatory definition of a TC

waste in 40 CFR 261.24.

6Table 1 is identical to Table 3B of the proposed

rule (66 FR 9793, February 12, 2001), except that

typographical errors for the entries for lead and

chromium have been corrected in response to

verbal comments by BMW. Specifically, the DRAScalculated delisting level for chromium was

corrected to read ‘‘5.39 × 105*,’’ instead of ‘‘5.39 ×

10 minus;5,’’ and the DAF for lead was corrected

to read ‘‘1.24 × 104,’’ instead of ‘‘1.24 × 10¥4.’’ The

acronym, ‘‘DAF,’’ in Table 1, means the Dilution

Attenuation Factor calculated by DRAS. The ‘‘*’’ in

Table 1 means that the DRAS-calculated delisting

level exceeds the Toxicity Characteristic regulatory

level. See Footnote 5 above.

TCLP extracts of the samples were

below the TC regulatory levels. The

maximum reported concentration of

total cyanide in unextracted waste was

3.35 milligrams per kilogram (mg/kg),

which is greater than the generic

exclusion level of 1.8 mg/kg for high

temperature metal recovery (HTMR)

residues in 40 CFR 261.3(c)(2)(ii)(C)(1),

and less than 590 mg/kg, the Land

Disposal Restrictions (LDR) Universal

Treatment Standards (UTS) level, in

section 268.48. Chromium was

undetected in the TCLP extract of any

sample. The maximum reported

concentration of chromium in

unextracted samples was 100 mg/kg for

the German plant and 222 mg/kg for the

Greer, South Carolina plant. The

maximum concentration of nickel in the

TCLP extract of any sample was 0.73

milligrams per liter (mg/l) for the

German plant and 6.25 mg/l for the

Greer, South Carolina plant. The

maximum reported concentration of

nickel in unextracted samples was 6,500

mg/kg for the German plant and 1,700

mg/kg for the Greer, South Carolina

plant. See the proposed rule, 66 FR

9781–9798, February 12, 2001, for

details on BMW’s analytical data,

production process, and generation

process for the petitioned waste. EPA

does not generally verify submitted test

data before proposing delisting

decisions. The sworn affidavit

submitted with this petition binds the

petitioner to present truthful and

accurate results. The Agency, however,

has maintained a spot-check sampling

and analysis program to verify the

representative nature of data for some

percentage of the submitted petitions. A

spot-check visit to a selected facility

may be initiated before or after granting

a delisting. Section 3007 of RCRA gives

EPA the authority to conduct

inspections to determine if a delisted

waste is meeting the delisting

conditions.

III. EPA’s Evaluation and Final Rule

A. What Decision Is EPA Finalizing and

Why?

For reasons stated in both the

proposal and this final rule, EPA

believes that BMW’s petitioned waste

should be excluded from hazardous

waste control. EPA, therefore, is

granting a final generator-specific

exclusion to BMW, of Greer, South

Carolina, for a maximum annual

generation rate of 2,850 cubic yards of

the waste described in its petition as

EPA Hazardous Waste Number F019.

This waste is required to undergo

verification testing before being

considered as excluded from Subtitle C

regulation. Requirements for waste to be

land disposed have been included in

this exclusion. The exclusion applies

only to the waste as described in BMW’s

petition, dated June 2000.

Although management of the waste

covered by this petition is relieved from

Subtitle C jurisdiction, the generator of

the delisted waste must either treat,

store, or dispose of the waste in an onsite facility, or ensure that the waste is

delivered to an off-site storage,

treatment, or disposal facility, either of

which is permitted, licensed or

registered by a State to manage

municipal or industrial solid waste.

Alternatively, the delisted waste may be

delivered to a facility that beneficially

uses or reuses, or legitimately recycles

or reclaims the waste, or treats the waste

prior to such beneficial use, reuse,

recycling, or reclamation. See 40 CFR

part 260, appendix I. BMW’s preferred

method of waste management for its

delisted waste is recycling, rather than

land disposal. Nonhazardous waste

management is subject to all applicable

federal, state, and local regulations.

B. What Are the Terms of This

Exclusion?

In the rule proposed on February 12,

2001, EPA requested public comment

on which of the following possible

methods should be used to evaluate

BMW’s delisting petition and set

delisting levels for the petitioned waste

(see 66 FR 9781–9798, February 12,

2001):

(1) Delisting levels based on the EPA

Composite Model for Landfills

(EPACML), modified for delisting; (2)

delisting levels based on the EPA

Composite Model for Leachate

Migration with Transformation Products

(EPACMTP model) as used in EPA,

Region 6’s Delisting Risk Assessment

Software (DRAS); (3) use of the Multiple

Extraction Procedure (MEP), SW–846

Method 1320, to evaluate the long-term

resistance of the waste to leaching in a

landfill; (4) 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 (5) setting delisting

levels at the Land Disposal Restrictions

(LDR) Universal Treatment Standards

(UTS) levels in 40 CFR 268.48. See the

proposed rule, 66 FR 9781–9798,

February 12, 2001, for details of

calculating delisting levels using these

methods.

After considering all public comments

on the proposed rule, and the MEP

analysis of the petitioned waste which

indicated long-term resistance to

leaching (see 66 FR 9793–9794,

February 12, 2001), EPA is granting

BMW, in today’s final rule, an exclusion

from the lists of hazardous wastes in

subpart D of 40 CFR part 261 for its

petitioned waste when disposed in a

Subtitle D 4 landfill. BMW must meet all

of the following delisting conditions in

order for this exclusion to be valid: (1)

Delisting levels in mg/l in the TCLP

extract of the waste based on the DRAS

EPACMTP model of 100.0 5 for Barium,

1.0 for Cadmium, 5.0 for Chromium,

33.6 for Cyanide, 5.0 for Lead, and 70.3

for Nickel; (2) the total concentration of

cyanide (total, not amenable) in the

waste, not the waste leachate, must not

exceed 200 mg/kg; (3) the total

concentrations, in mg/kg, of metals in

the waste, not the waste leachate, must

not exceed 2,000 for Barium, 500 for

Cadmium, 1,000 for Chromium, 2,000

for Lead, and 20,000 for Nickel.

Delisting levels and risk levels

calculated by DRAS, using the

EPACMTP model, are presented in

Table 1 below.6 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. For details, see

the following Federal Registers: 65 FR

75637–75651, December 4, 2000; 65 FR

58015–58031, September 27, 2000; and

the proposed rule for BMW’s petitioned

waste, 66 FR 9792–9793, February 12,

2001.

Federal Register / Vol. 66, No. 85 / Wednesday, May 2, 2001 / Rules and Regulations 21881

7 Delisted wastes cannot exhibit a hazardous

waste characteristic. Therefore, when delisting

levels are set at the Toxicity Characteristic (TC)

regulatory levels, the TCLP extract of the petitioned

waste must have concentrations less than the TC

levels in order to meet conditions for delisitng.

Although the DRAS EPACMTP calculates higher

concentrations (see the proposed rule, 66 FR 9793,

February 12, 2001, and Table 1, section III.B. of

today’s preamble), the delisting levels in the final

rule are set at the TC levels for barium, cadmium,

chromium, and lead.

TABLE 1.—DELISTING AND RISK LEVELS CALCULATED BY DRAS WITH EPACMTP MODEL FOR BMW PETITIONED WASTE

Constituent Delisting level

(mg/l TCLP) DAF

DRAS-calculated risk for

maximum concentration of

carcinogen in

waste

DRAS-calculated hazard

quotient for

maximum concentration of

non-carcinogen

in waste

Barium .................................................................................................. 182* 69.2 ........................... 4.87×10–2

Cadmium .............................................................................................. 1.4* 74.6 1.62×10–13 3.57×10–2

Chromium ............................................................................................. 5.39×105* 9,580 ........................... 5.8× 10–7

Cyanide ................................................................................................ 33.6 44.8 ........................... 1.49×10–3

Lead ..................................................................................................... 187* 1.24×104 ........................... Not Calculable;

No Reference

Dose for Lead

Nickel ................................................................................................... 70.3 93.5 ........................... 8.9×102

Total Hazard Quotient for All Waste Constituents .............................. ........................... ........................... ........................... 0.187

Total Carcinogenic Risk for the Waste (due to Cadmium) ................. ........................... ........................... 1.62×10–13

EPA believes that the limits on total

concentrations in conditions (2) and (3)

above are protective of human health

and the environment, and that they are

appropriate, given that the delisted

waste is not subject to regulation as a

hazardous waste. EPA also believes that

these limits are realistic, attainable

values for wastewater treatment sludges

that contain metals and cyanide. 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.)

After taking into account all public

comments on the proposed rule, EPA is

retaining in today’s final rule to exclude

BMW’s petitioned waste Conditions (2)

through (7) in Table 1, appendix IX of

part 261 of the proposed rule (66 FR

9796–9798, February 12, 2001). In

response to public comments, EPA is

changing Condition (1) for BMW’s waste

in Appendix IX, by replacing the

proposed delisting levels in the TCLP

leachate with the leachate delisting

levels in the first condition of today’s

Preamble, section III.B: delisting levels,

in mg/l in the TCLP extract of the waste,

of 100.0 7 for Barium, 1.0 for Cadmium,

5.0 for Chromium, 33.6 for Cyanide, 5.0

for Lead, and 70.3 for Nickel. The limits

on total concentrations in today’s final

rule are the same as proposed in

Condition (1) of Table 1, appendix IX,

part 261: The total concentration of

cyanide (total, not amenable) in the

waste, not the waste leachate, must not

exceed 200 mg/kg; the total

concentrations, in mg/kg, of metals in

the waste, not the waste leachate, must

not exceed 2,000 for Barium, 500 for

Cadmium, 1,000 for Chromium, 2,000

for Lead, and 20,000 for Nickel.

C. When Is the Delisting Effective?

This rule is effective on May 2, 2001.

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 reduces the existing

requirements for persons generating

hazardous wastes. 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 sixmonth 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).

D. How Does This Action Affect the

States?

The final exclusion being granted

today is 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

(RCRA) and State (non-RCRA) 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 exclusion

does not apply in those authorized

States. If the petitioned waste will be

transported to and managed in 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. Public Comments Received on the

Proposed Exclusion

A. Who Submitted Comments on the

Proposed Rule?

EPA received public comments on the

proposed rule published in 66 FR 9781–

9798, February 12, 2001, from (1) BMW

Manufacturing Corporation, Greer,

South Carolina (BMW), the petitioner,

(2) Alliance of Automobile

Manufacturers, Washington, DC, (3)

Nissan North America, Inc., Smyrna,

Tennessee, and (4) The Aluminum

Association, Washington, DC. EPA

commends and appreciates the

thoughtful comments submitted by all

of the commenters.

B. Comments and Responses From EPA

Comment: BMW stated that the Land

Disposal Restrictions (LDR) should not

be used to establish delisting levels,

because there is no scientific or

regulatory basis for their use. BMW also

stated, in support of this position, that

EPA had decided not to establish

delisting levels based on LDR, in

21882 Federal Register / Vol. 66, No. 85 / Wednesday, May 2, 2001 / Rules and Regulations

8 Delisted wastes cannot exhibit a hazardous

waste characteristic. Therefore, when delisting

levels are set at the Toxicity Characteristic (TC)

regulatory levels, the TCLP extract of the petitioned

waste must have concentrations less than the TC

levels in order to meet conditions for delisting.

Although the DRAS EPACMTP calculates higher

concentrations (see the proposed rule, 66 FR 9793,

February 12, 2001, and Table 1, section III.B. of

today’s preamble), the delisting levels in the final

rule are set at the TC levels for barium, cadmium,

chromium, and lead.

response to public comments on a

previously proposed rule to delist F019

waste (64 FR 55443, October 13, 1999).

Response: EPA has decided not to set

delisting levels based on LDR for

BMW’s petitioned waste, and the final

delisting levels in appendix IX of part

261 established in today’s final rule are

not based on LDR. The analytical data

submitted by BMW indicate that the

petitioned waste, when generated,

would meet LDR treatment standards.

See the proposed rule, 66 FR 9790–

9792, February 12, 2001, and today’s

preamble, section II.B.

Comment: BMW disagrees with EPA’s

proposed method of setting delisting

levels based on total concentrations,

because there is no scientific correlation

between total concentrations of metals

and environmental impact. BMW stated

that EPA modeling and testing

demonstrate that harmful

concentrations of constituents will not

leach from the petitioned waste.

Response: BMW brings up some

significant issues in this comment and

makes some good points. However, EPA

feels that the proposed limits on total

concentrations are reasonable, given

that the delisted waste will not be

subject to regulation as a hazardous

waste under RCRA Subtitle C. These

limits will provide added reassurance to

the public that management of the waste

as nonhazardous will be protective of

human health and the environment.

Comment: BMW disagrees with EPA’s

proposal to base delisting levels on the

EPACML model (66 FR 9792–9793,

9797, February 12, 2001). BMW stated

that if the new EPACMTP model ‘‘is

truly based on improved science, the

concentration limits calculated by the

model should be the basis for

establishing delisting levels.’’

Response: EPA agrees with the points

made in this comment, and today’s final

rule uses the DRAS EPACMTP as the

basis for the delisting levels in the TCLP

extract of the waste. As stated in today’s

preamble, section III.B., concentrations

in the TCLP extract of the waste (in mg/

l) are limited to 100.0 8 for Barium, 1.0

for Cadmium, 5.0 for Chromium, 33.6

for Cyanide, 5.0 for Lead, and 70.3 for

Nickel.

Comment: The Alliance of

Automobile Manufacturers (Alliance)

stated that it strongly supports the

proposed delisting, and agrees with EPA

that fate and transport models are useful

tools to evaluate delisting petitions.

However, the Alliance believes that the

F019 listing itself should be revised to

exclude wastewater treatment sludges

from automotive industry conversion

coating on aluminum when hexavalent

chromium and cyanides are not used in

the process.

Response: Today’s final rule is sitespecific and waste-specific; it applies

only to BMW’s plant in Greer, South

Carolina, and only to the petitioned

waste. An exclusion of general

applicability would require a separate

rule-making, with more extensive data

collection and risk analysis. EPA

understands the Alliance’s concern

about the need for each auto company

to submit a delisting petition, but is

unable to address this concern at the

present time.

Comment: The Alliance disagrees

with EPA’s proposed use of (1) the MEP

to evaluate BMW’s delisting petition; (2)

establishing delisting levels based on

total concentrations; and (3) establishing

delisting levels based on LDR treatment

standards.

Response: (1) EPA used MEP analysis

of the petitioned waste as a measure of

the long-term resistance of the waste to

leaching (see 66 FR 9789, 9793–9794,

February 12, 2001), which is an

important consideration for waste to be

disposed in a Subtitle D (nonhazardous

waste) landfill. (2) The Alliance brings

up some significant issues in this

comment and makes some good points.

However, EPA feels that the proposed

limits on total concentrations are

reasonable, given that the delisted waste

will not be subject to regulation as a

hazardous waste under RCRA Subtitle

C. These limits will provide added

reassurance to the public that

management of the waste as

nonhazardous will be protective of

human health and the environment. (3)

EPA has decided not to set delisting

levels based on LDR for BMW’s

petitioned waste, and the final delisting

levels in appendix IX of part 261

established in today’s final rule are not

based on LDR. The analytical data

submitted by BMW indicate that the

petitioned waste, when generated,

would meet LDR treatment standards.

See the proposed rule, 66 FR 9790–

9792, February 12, 2001, and today’s

preamble, section II.B.

Comment: The Alliance commented

on the use of the EPACMTP and DRAS

by saying that their use should be the

subject of a separate rulemaking because

they raise complex issues that EPA

should not try to resolve in this

delisting.

Response: Use of the EPACMTP and

DRAS has been described in detail in 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). For every delisting

petition submitted to EPA, EPA

proposes and requests comment on all

available methods for evaluating the

petition and setting delisting levels,

including the EPACMTP and DRAS.

Thus, these models, and future

improvements, will be proposed for

comment in every delisting rulemaking.

Comment: Nissan North America, Inc.

(Nissan) stated that none of the

following methods proposed by EPA is

appropriate for evaluating BMW’s

petition and setting delisting levels for

the petitioned waste: (1) Use of the

MEP; (2) setting limits on total

concentrations; and (3) setting delisting

levels at the LDR UTS levels in 40 CFR

268.48.

Response: (1) EPA used MEP analysis

of the petitioned waste as a measure of

the long-term resistance of the waste to

leaching (see 66 FR 9789, 9793–9794,

February 12, 2001), which is an

important consideration for waste to be

disposed in a Subtitle D (nonhazardous

waste) landfill. (2) Nissan’s points are

well taken, but EPA feels that the

proposed limits on total concentrations

are reasonable, given that the delisted

waste will not be subject to regulation

as a hazardous waste under RCRA

Subtitle C. These limits will provide

added reassurance to the public that

management of the waste as

nonhazardous will be protective of

human health and the environment. (3)

EPA has decided not to set delisting

levels based on LDR for BMW’s

petitioned waste, and the final delisting

levels in appendix IX of part 261

established in today’s final rule are not

based on LDR. The analytical data

submitted by BMW indicate that the

petitioned waste, when generated,

would meet LDR treatment standards.

See the proposed rule, 66 FR 9790–

9792, February 12, 2001, and today’s

preamble, section II.B.

Comment: The Aluminum

Association (TAA) stated that the

restrictions imposed in the proposed

Federal Register / Vol. 66, No. 85 / Wednesday, May 2, 2001 / Rules and Regulations 21883

rule (66 FR 9781–9798, February 12,

2001) may have an impact on future

delistings submitted by aluminum

industry customers that use aluminum

parts in the manufacture of automobiles.

Response: TAA’s concern is

understandable, but today’s final rule is

site-specific and waste-specific. It

applies only to BMW’s plant in Greer,

South Carolina, and only to the

petitioned waste. EPA evaluates every

delisting petition on its own merits, in

accordance with 40 CFR 260.20 and

260.22, and every proposed and final

rule on delisting is site-specific and

waste-specific.

Comment: TAA expressed support for

the proposed delisting and the

determination that BMW’s petitioned

waste is nonhazardous. TAA also

expressed support for all of the

comments on the proposal submitted by

the Alliance of Automobile

Manufacturers (Alliance): (1) The F019

listing definition needs to be changed so

that conversion coating processes are

excluded when they don’t use the

constituents of concern that were the

basis of the original listing; (2) BMW’s

waste should not be evaluated by means

of the MEP; (3) limits for total

concentrations in BMW’s waste should

not be set; (4) delisting levels for BMW’s

waste should not be based on the LDR

UTS; and (5) EPA should use a separate

notice and comment rulemaking for use

of the EPACMTP and DRAS.

Response: (1) Today’s final rule is

site-specific and waste-specific; it

applies only to BMW’s plant in Greer,

South Carolina, and only to the

petitioned waste. An exclusion of

general applicability would require a

separate rule-making, with more

extensive data collection and risk

analysis. EPA understands the concern

of TAA and the Alliance about the need

for each auto company to submit a

delisting petition, but is unable to

address this concern at the present time.

(2) EPA used MEP analysis of the

petitioned waste as a measure of the

long-term resistance of the waste to

leaching (see 66 FR 9789, 9793–9794,

February 12, 2001), which is an

important consideration for waste to be

disposed in a Subtitle D (nonhazardous

waste) landfill. (3) EPA feels that the

proposed limits on total concentrations

are reasonable, given that the delisted

waste will not be subject to regulation

as a hazardous waste under RCRA

Subtitle C. These limits will provide

added reassurance to the public that

management of the waste as

nonhazardous will be protective of

human health and the environment. (4)

EPA has decided not to set delisting

levels based on LDR for BMW’s

petitioned waste, and the final delisting

levels in appendix IX of part 261

established in today’s final rule are not

based on LDR. The analytical data

submitted by BMW indicate that the

petitioned waste, when generated,

would meet LDR treatment standards.

See the proposed rule, 66 FR 9790–

9792, February 12, 2001, and today’s

preamble, section II.B. (5) Use of the

EPACMTP and DRAS has been

described in detail in 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). For every delisting petition

submitted to EPA, EPA proposes and

requests comment on all available

methods for evaluating the petition and

setting delisting levels, including the

EPACMTP and DRAS. Thus, these

models, and future improvements, will

be proposed for comment in every

delisting rulemaking.

V. Regulatory Impact

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this action is

not a rule of general applicability and

therefore is not a ‘‘regulatory action’’

subject to review by the Office of

Management and Budget. Because this

action is a rule of particular

applicability relating to a facility, it is

not subject to the regulatory flexibility

provisions of the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.), or to sections

202, 204, and 205 of the Unfunded

Mandates Reform Act of 1995 (UMRA)

(Pub. L. 104–4). Because the rule will

affect only one facility, it will not

significantly or uniquely affect small

governments, as specified in section 203

of UMRA, or communities of tribal

governments, as specified in Executive

Order 13084 (63 FR 27655, May 10,

1998). For the same reason, this rule

will not have substantial direct effects

on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government, as

specified in Executive Order 13132 (64

FR 43255, August 10, 1999). This rule

also is not subject to Executive Order

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

because it is not economically

significant.

This rule does not involve technical

standards; thus, the requirements of

section 12(c) of the National Technology

Transfer and Advancement Act of 1995

(15 U.S.C. 272 note) do not apply. As

required by section 3 of Executive Order

12988 (61 FR 4729, February 7, 1996),

in issuing this rule, EPA has taken the

necessary steps to eliminate drafting

errors and ambiguity, minimize

potential litigation, and provide a clear

legal standard for affected conduct. EPA

has complied with Executive Order

12630 (53 FR 8859, March 15, 1988) by

examining the takings implications of

the rule in accordance with the

‘‘Attorney General’s Supplemental

Guidelines for the Evaluation of Risk

and Avoidance of Unanticipated

Takings’’ issued under the executive

order.

This rule does not impose an

information collection burden under the

provisions of the Paperwork Reduction

Act of 1995 (44 U.S.C. 3501 et seq.).

VI. Congressional Review Act

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. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, the

Comptroller General of the United

States prior to publication of the final

rule in the Federal Register. This rule

is not a ‘‘major rule’’ as defined by 5

U.S.C. 804(2). This rule will become

effective on the date of publication in

the Federal Register.

VII. Executive Order 12875

Under Executive Order 12875, EPA

may not issue a regulation that is not

required by statute and that creates a

mandate upon a state, local, or tribal

government, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by those governments. If

the mandate is unfunded, EPA must

provide to the Office of Management

and Budget a description of the extent

of EPA’s prior consultation with

representatives of affected state, local,

and tribal governments, the nature of

their concerns, copies of written

communications from the governments,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 12875 requires EPA to

develop an effective process permitting

21884 Federal Register / Vol. 66, No. 85 / Wednesday, May 2, 2001 / Rules and Regulations

elected officials and other

representatives of state, local, and tribal

governments ‘‘to provide meaningful

and timely input in the development of

regulatory proposals containing

significant unfunded mandates.’’

Today’s rule does not create a

mandate on state, local or tribal

governments. The rule does not impose

any enforceable duties on these entities.

Accordingly, the requirements of

section 1(a) of Executive Order 12875 do

not apply to this rule.

List of Subjects in 40 CFR Part 261

Environmental protection, Hazardous

waste, Recycling, Reporting and

recordkeeping requirements.

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

6921(f).

Dated: April 10, 2001.

Richard D. Green,

Director, Waste Management Division.

For the reasons set out in the

preamble, 40 CFR part 261 is 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 to Part 261—Wastes

Excluded Under §§ 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 May 2, 2001. 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.

(1) Delisting Levels: All leachable concentrations for these metals

must be less than the following levels (ppm): Barium—100.0; Cadmium—1.0; Chromium—5.0; and Lead—5.0. All leachable concentrations for cyanide and nickel must not exceed the following

levels (ppm): Cyanide—33.6; and Nickel—70.3. 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).

Federal Register / Vol. 66, No. 85 / Wednesday, May 2, 2001 / Rules and Regulations 21885

TABLE 1.—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES—Continued

Facility Address Waste description

(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.

(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).

21886 Federal Register / Vol. 66, No. 85 / Wednesday, May 2, 2001 / Rules and Regulations

TABLE 1.—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES—Continued

Facility Address Waste description

(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. 01–10991 Filed 5–1–01; 8:45 am]

BILLING CODE 6560–50–U

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 679

[Docket No. 010112013–1013–01; I.D.

042701B]

Fisheries of the Exclusive Economic

Zone Off Alaska; Shallow-Water

Species Fishery by Vessels Using

Trawl Gear in the Gulf of Alaska

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Closure.

SUMMARY: NMFS is prohibiting directed

fishing for species that comprise the

shallow-water species fishery by vessels

using trawl gear in the Gulf of Alaska

(GOA), except for vessels fishing for

pollock using pelagic trawl gear in those

portions of the GOA open to directed

fishing for pollock. This action is

necessary because the second seasonal

apportionment of the 2001 halibut

bycatch allowance specified for the

trawl shallow-water species fishery in

the GOA has been caught.

DATES: Effective 1200 hrs, Alaska local

time (A.l.t.), April 27, 2001, until 1200

hrs, A.l.t., June 10, 2001.

FOR FURTHER INFORMATION CONTACT:

Mary Furuness, 907–586–7228.

SUPPLEMENTARY INFORMATION: NMFS

manages the groundfish fishery in the

GOA exclusive economic zone

according to the Fishery Management

Plan for Groundfish of the Gulf of

Alaska (FMP) prepared by the North

Pacific Fishery Management Council

under authority of the MagnusonStevens Fishery Conservation and

Management Act. Regulations governing

fishing by U.S. vessels in accordance

with the FMP appear at subpart H of 50

CFR part 600 and 50 CFR part 679.

The Pacific halibut bycatch allowance

for the GOA trawl shallow-water species

fishery, which is defined at

§ 679.21(d)(3)(iii)(A), was established by

the Final 2001 Harvest Specifications

and Associated Management Measures

for the Groundfish Fisheries Off Alaska

(66 FR 7276, January 22, 2001) for the

second season, the period April 1, 2001,

through June 10, 2001, as 100 metric

tons.

In accordance with § 679.21(d)(7)(i),

the Administrator, Alaska Region,

NMFS, has determined that the second

seasonal apportionment of the 2001