Federal Register / Vol. 66, No. 92 / Friday, May 11, 2001 / Proposed Rules 24085

SUPPLEMENTARY INFORMATION: See the

information provided in the direct final

rule located in the final rules section

and the proposed rule located in the

proposed rules section of the Federal

Register published on March 20, 2001.

Dated: May 3, 2001.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

[FR Doc. 01–11911 Filed 5–10–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 261

[SW–FRL–6958–5]

Hazardous Waste Management

System; Identification and Listing of

Hazardous Waste; Proposed Exclusion

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule and request for

comment.

SUMMARY: The EPA is proposing to use

the Delisting Risk Assessment Software

(DRAS) in the evaluation of a delisting

petition. Based on waste specific

information provided by the petitioner,

EPA is proposing to use the DRAS to

evaluate the impact of the petitioned

waste on human health and the

environment.

The EPA is also proposing to grant a

petition submitted by Tenneco

Automotive, Inc. (Tenneco) to exclude

(or delist) certain solid wastes generated

by its Paragould, Arkansas, facility from

the lists of hazardous wastes contained

in 40 CFR 261.24 and 261.31

(hereinafter all sectional references are

to 40 CFR unless otherwise indicated).

Tenneco submitted the petition under

sections 260.20 and 260.22(a). Section

260.20 allows any person to petition the

Administrator to modify or revoke any

provision of 40 CFR parts 260 through

266, 268 and 273. Section 260.22(a)

specifically provides generators the

opportunity to petition the

Administrator to exclude a waste on a

‘‘generator specific’’ basis from the

hazardous waste lists.

The Agency bases its proposed

decision to grant the petition on an

evaluation of waste-specific information

provided by the petitioner. This

proposed decision, if finalized, would

exclude the petitioned waste from the

requirements of hazardous waste

regulations under the Resource

Conservation and Recovery Act (RCRA).

If finalized, we would conclude that

Tenneco’s petitioned waste is

nonhazardous with respect to the

original listing criteria and that the

stabilization process Tenneco used will

substantially reduce the likelihood of

migration of constituents from this

waste. We would also conclude that

their process minimizes short-term and

long-term threats from the petitioned

waste to human health and the

environment.

DATES: We will accept comments until

June 25, 2001. We will stamp comments

received after the close of the comment

period as ‘‘late.’’ These ‘‘late’’ comments

may not be considered in formulating a

final decision. Your requests for a

hearing must reach EPA by June 11,

2001. The request must contain the

information prescribed in 40 CFR

260.20(d).

ADDRESSES: Please send three copies of

your comments. You should send two

copies to William Gallagher, Delisting

Section, Multimedia Planning and

Permitting Division (6PD–O),

Environmental Protection Agency, 1445

Ross Avenue, Dallas, Texas 75202. You

should send a third copy to the

Arkansas Department of Environmental

Quality (ADEQ), P.O. Box 8913, Little

Rock, Arkansas, 72209–8913. Identify

your comments at the top with this

regulatory docket number: ‘‘F–00–

ARDEL–TENNECO.’’

You should address requests for a

hearing to the Director, Carl Edlund,

Multimedia Planning and Permitting

Division (6PD), Environmental

Protection Agency, 1445 Ross Avenue,

Dallas, Texas 75202.

FOR FURTHER INFORMATION CONTACT:

Michelle Peace at (214) 665–7430.

SUPPLEMENTARY INFORMATION: The

information in this section is organized

as follows:

I. Overview Information

A. What action is EPA proposing?

B. Why is EPA proposing to approve this

delisting?

C. How will Tenneco manage the waste if

it is delisted?

D. When would EPA finalize the proposed

delisting?

E. How would this action affect States?

II. Background

A. What is the history of the delisting

program?

B. What is a delisting petition, and what

does it require of a petitioner?

C. What factors must EPA consider in

deciding whether to grant a delisting

petition?

III. EPA’s Evaluation of the Waste

Information and Data

A. What wastes did Tenneco petition EPA

to delist?

B. What is Tenneco, and how did it

generate this waste?

C. What information and analyses did

Tenneco submit to support its petition?

D. What were the results of Tenneco’s

analysis?

E. How did EPA evaluate the risk of

delisting this waste?

F. What did EPA conclude about Tenneco’s

analysis?

G. What other factors did EPA consider?

H. What is EPA’s evaluation of this

delisting petition?

IV. Next Steps

A. With what conditions must the

petitioner comply?

B. What happens if Tenneco violates the

terms and conditions?

V. Public Comments

A. How can I as an interested party submit

comments?

B. How may I review the docket or obtain

copies of the proposed exclusions?

VI. Regulatory Impact

VII. Regulatory Flexibility Act

VIII. Paperwork Reduction Act

IX. Unfunded Mandates Reform Act

X. Executive Order 13045

XI. Executive Order 13084

XII. National Technology Transfer and

Advancements Act

XIII. Executive Order 13132 Federalism

I. Overview Information

A. What Action Is EPA Proposing?

The EPA is proposing:

(1) To grant Tenneco’s petition to

have its stabilized sludge excluded, or

delisted, from the definition of a

hazardous waste; and

(2) To use a fate and transport model

to evaluate the potential impact of the

petitioned waste on human health and

the environment. The Agency would

use this model to predict the

concentration of hazardous constituents

released from the petitioned waste, once

it is disposed.

B. Why Is EPA Proposing To Approve

This Delisting?

Tenneco’s petition requests a delisting

for listed hazardous wastes. Tenneco

does not believe that the petitioned

waste meets the criteria for which EPA

listed it. Tenneco also believes no

additional constituents or factors could

cause the waste to be hazardous. The

EPA’s review of this petition included

consideration of the original listing

criteria, and the additional factors

required by the Hazardous and Solid

Waste Amendments of 1984 (HSWA).

See section 3001(f) of RCRA, 42 U.S.C.

6921(f), and 40 CFR 260.22 (d)(1)–(4). In

making the initial delisting

determination, EPA evaluated the

petitioned waste against the listing

criteria and factors cited in

§ 261.11(a)(2) and (a)(3). Based on this

review, the EPA agrees with the

petitioner that the waste is

nonhazardous with respect to the

original listing criteria. (If the EPA had

found, based on this review, that the

24086 Federal Register / Vol. 66, No. 92 / Friday, May 11, 2001 / Proposed Rules

waste remained hazardous based on the

factors for which the waste was

originally listed, EPA would have

proposed to deny the petition.) The EPA

evaluated the waste with respect to

other factors or criteria to assess

whether there is a reasonable basis to

believe that such additional factors

could cause the waste to be hazardous.

The EPA considered whether the waste

is acutely toxic, the concentration of the

constituents in the waste, their tendency

to migrate and to bioaccumulate, their

persistence in the environment once

released from the waste, plausible and

specific types of management of the

petitioned waste, the quantities of waste

generated, and waste variability. The

EPA believes that the petitioned waste

does not meet these criteria. The EPA’s

proposed decision to delist waste from

Tenneco’s facility is based on the

information submitted in support of

today’s rule, i.e., descriptions of the

wastes and analytical data from the

Paragould facility.

C. How Will Tenneco Manage the Waste

if It Is Delisted?

Tenneco currently stores the

petitioned waste (stabilized sludge)

generated in containment vaults on-site

at its facility. If the delisting exclusion

is finalized, Tenneco will dispose of the

sludge in a solid waste landfill in

Arkansas.

D. When Would EPA Finalize the

Proposed Delisting?

RCRA section 3001(f) specifically

requires EPA to provide notice and an

opportunity for comment before

granting or denying a final exclusion.

Thus, EPA will not grant the exclusion

until it addresses all timely public

comments (including those at public

hearings, if any) on today’s proposal.

RCRA section 3010(b)(1) at 42 U.S.C.

6930(b)(1), allows 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

persons generating hazardous wastes.

The EPA believes that this exclusion

should be effective immediately upon

final publication because a six-month

deadline is not necessary to achieve the

purpose of section 3010(b), and a later

effective date would impose

unnecessary hardship and expense on

this petitioner. These reasons also

provide good cause for making this rule

effective immediately, upon final

publication, under the Administrative

Procedure Act, 5 U.S.C. 553(d).

E. How Would This Action Affect the

States?

Because EPA is issuing today’s

exclusion under the Federal RCRA

delisting program, only States subject to

Federal RCRA delisting provisions

would be affected. This would exclude

two categories of States: States having a

dual system that includes Federal RCRA

requirements and their own

requirements, and States who have

received authorization from EPA to

make their own delisting decisions.

Here are the details: We allow states

to impose their own non-RCRA

regulatory requirements that are more

stringent than EPA’s, under section

3009 of RCRA, 42 U.S.C. 6929. These

more stringent requirements may

include a provision that prohibits a

Federally issued exclusion from taking

effect in the State. Because a dual

system (that is, both Federal (RCRA) and

State (non-RCRA) programs) may

regulate a petitioner’s waste, we urge

petitioners to contact the State

regulatory authority to establish the

status of their wastes under the State

law.

The EPA has also authorized some

States (for example, Louisiana, Georgia,

Illinois) to administer a RCRA delisting

program in place of the Federal

program, that is, to make State delisting

decisions. Therefore, this exclusion

does not apply in those authorized

States unless that State makes the rule

part of its authorized program. If

Tenneco transports the petitioned waste

to or manages the waste in any State

with delisting authorization, Tenneco

must obtain delisting authorization from

that State before they can manage the

waste as nonhazardous in the State.

II. Background

A. What Is the History of the Delisting

Program?

The EPA published an amended list

of hazardous wastes from nonspecific

and specific sources on January 16,

1981, as part of its final and interim

final regulations implementing section

3001 of RCRA. The EPA has amended

this list several times and published it

in 40 CFR 261.31 and 261.32.

We list these wastes as hazardous

because: (1) they typically and

frequently exhibit one or more of the

characteristics of hazardous wastes

identified in subpart C of Part 261 (that

is, ignitability, corrosivity, reactivity,

and toxicity) or (2) they meet the criteria

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

(a)(3).

Individual waste streams may vary,

however, depending on raw materials,

industrial processes, and other factors.

Thus, while a waste described in these

regulations generally is hazardous, a

specific waste from an individual

facility meeting the listing description

may not be hazardous.

For this reason, sections 260.20 and

260.22 provide an exclusion procedure,

called delisting, which allows persons

to prove that EPA should not regulate a

specific waste from a particular

generating facility as a hazardous waste.

B. What Is a Delisting Petition, and

What Does It Require of a Petitioner?

A delisting petition is a request from

a facility to EPA or an authorized State

to exclude wastes from the list of

hazardous wastes. The facility petitions

the Agency because it does not consider

the wastes hazardous under RCRA

regulations.

In a delisting petition, the petitioner

must show that wastes generated at a

particular facility do not meet any of the

criteria for which the waste was listed.

The criteria for which EPA lists a waste

are in part 261 and further explained in

the background documents for the listed

waste.

In addition, under section 260.22, a

petitioner must prove that the waste

does not exhibit any of the hazardous

waste characteristics (that is,

ignitability, reactivity, corrosivity, and

toxicity) and present sufficient

information for EPA to decide whether

factors other than those for which the

waste was listed warrant retaining it as

a hazardous waste. (See part 261 and the

background documents for the listed

waste.)

Generators remain obligated under

RCRA to confirm whether their waste

remains nonhazardous based on the

hazardous waste characteristics even if

EPA has ‘‘delisted’’ the waste.

C. What Factors Must EPA Consider in

Deciding Whether To Grant a Delisting

Petition?

Besides considering the criteria in

section 260.22(a) and section 3001(f) of

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

background documents for the listed

wastes, EPA must consider any factors

(including additional constituents) other

than those for which we listed the waste

if a reasonable basis exists that these

additional factors could cause the waste

to be hazardous.

The EPA must also consider as

hazardous waste mixtures containing

listed hazardous wastes and wastes

derived from treating, storing, or

disposing of listed hazardous waste. See

§ 261.3(a)(2)(iii) and (iv) and (c)(2)(i),

called the ‘‘mixture’’ and ‘‘derivedfrom’’ rules, respectively. These wastes

are also eligible for exclusion and

Federal Register / Vol. 66, No. 92 / Friday, May 11, 2001 / Proposed Rules 24087

remain hazardous wastes until

excluded.

The ‘‘mixture’’ and ‘‘derived-from’’

rules are now final, after having been

vacated, remanded, and reinstated. 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 EPA on

procedural grounds. See Shell Oil Co. v.

EPA., 950 F.2d 741 (D.C. Cir. 1991). EPA

reinstated the mixture and derived-from

rules, and solicited comments on other

ways to regulate waste mixtures and

residues. See 57 FR 7628 (March 3,

1992). These rules became final on

October 30, 1992. See 57 FR 49278

(October 30, 1992). Consult these

references for more information about

mixtures and derived from wastes.

III. EPA’s Evaluation of the Waste

Information and Data

A. What Waste Did Tenneco Petition

EPA To Delist?

On September 8, 2000, Tenneco

petitioned the EPA to exclude from the

lists of hazardous waste contained in

§§ 261.31 and 261.32, stabilized sludge

excavated from the Finch Road Landfill

in Paragould, Arkansas. The waste falls

under the classification of listed waste

because of the ‘‘derived from’’ rule in 40

CFR 261.3. Specifically, in its petition,

Tenneco requested that EPA grant an

exclusion for 1,800 cubic yards of

dewatered sludge resulting from its

hazardous waste treatment process. The

resulting waste is listed, in accordance

with the ‘‘derived from’’ rule.

B. What Is Tenneco, and How Did It

Generate This Waste?

In 1973, Monroe Auto Equipment

Company (now Tenneco Automotive,

Inc.) purchased a seven-acre tract of

land, which included an inactive sand

and gravel borrow pit. This site was

approved by the State to be used as a

landfill. Approximately 15,400 cubic

yards of waste water treatment sludge

was deposited in the borrow pit

between 1973 and 1978, the sludge

originated from settling ponds that were

used for the treated waste water from

Tenneco’s Paragould manufacturing

plant. In 1996, a Superfund Record of

Decision (ROD) was issued pursuant to

the National Oil and Hazardous

Substances Pollution Contingency Plan

at 40 CFR 300.430(f)(5) for the Finch

Road Landfill. The ROD specified the

requirements for remediation of the soil

and groundwater at the site. In 1999,

Tenneco submitted a petition to modify

the ROD to include the excavation,

treatment, and off-disposal of the waste

in a Subtitle D landfill.

The Superfund removal action

consisted of the excavation and

segregation of the sludge; stabilizing the

sludge with 10 percent lime addition;

and stockpiling the stabilized sludge in

an on-site lined containment cell.

The waste would not have been

classified as RCRA hazardous waste in

its original state because it was

generated and placed in the Finch Road

landfill prior to RCRA regulation. The

stabilized sludge currently falls under

the classification of listed waste because

of the management (removal action) of

the material occurred after the effective

date of the rules in 1980. It is listed as

F006, sludge from electroplating

operations, based upon its original

source. The waste code of the

constituents of concern is EPA

Hazardous Waste No. F006. The

constituents of concern for F006 are

cadmium, hexavalent chromium, nickel,

and cyanide (complexed).

C. What Information and Analyses Did

Tenneco Submit To Support Its

Petition?

To support its petition, Tenneco

submitted:

(1) historical information on past

waste generation and management

practices;

(2) results of the total constituent list

for 40 CFR part 264, appendix IX

volatiles, semivolatiles, and metals

except pesticides, herbicides, and PCBs;

(3) results of the constituent list for

appendix IX on Toxicity Characteristic

Leaching Procedure (TCLP) extract for

volatiles, semivolatiles, and metals;

(4) results from total oil and grease

analyses and pH measurements.

D. What Were the Results of Tenneco’s

Analysis?

The EPA believes that the

descriptions of the Tenneco analytical

characterization provide a reasonable

basis to grant Tenneco’s petition for an

exclusion of the stabilized sludge. The

EPA believes the data submitted in

support of the petition show the

stabilized sludge is non-hazardous.

Analytical data for the stabilized sludge

samples were used in the DRAS. The

data summaries for detected

constituents are presented in Tables I.

The EPA has reviewed the sampling

procedures used by Tenneco and has

determined they satisfy EPA criteria for

collecting representative samples of the

variations in constituent concentrations

in the stabilized sludge. The data

submitted in support of the petition

show that constituents in Tenneco’s

waste are presently below health-based

levels used in the delisting decisionmaking. The EPA believes that Tenneco

has successfully demonstrated that the

stabilized sludge is non-hazardous.

TABLE I.—MAXIMUM TOTAL AND TCLP CONSTITUENT CONCENTRATIONS STABILIZED SLUDGE 1

Constituent

Total

constituent

analyses

(mg/kg)

TCLP Leachate

concentration

(mg/l)

Antimony .......................................................................................................................................................... 13.4 0.00335

Arsenic ............................................................................................................................................................. 21.5 0.0125

Barium .............................................................................................................................................................. 3.35 0.371

Benzene ........................................................................................................................................................... 0.008 0.050

Cadmium .......................................................................................................................................................... 0.423 0.050

cis-1,3-Dichloropropene ................................................................................................................................... 0.023 0.050

Ethylbenzene ................................................................................................................................................... 0.04 0.0015

Lead ................................................................................................................................................................. 575 0.223

Mercury ............................................................................................................................................................ 0.00015 0.0006

Methyl ethyl ketone .......................................................................................................................................... 0.076 0.00015

Nickel ............................................................................................................................................................... 7.32 0.07

Tetrachloroethylene ......................................................................................................................................... 0.014 0.0015

Toluene ............................................................................................................................................................ 0.073 0.0015

1,1,1-Trichloroethane ....................................................................................................................................... 0.011 0.005

Trichloroethylene ............................................................................................................................................. 0.029 0.0015

24088 Federal Register / Vol. 66, No. 92 / Friday, May 11, 2001 / Proposed Rules

TABLE I.—MAXIMUM TOTAL AND TCLP CONSTITUENT CONCENTRATIONS STABILIZED SLUDGE 1—Continued

Constituent

Total

constituent

analyses

(mg/kg)

TCLP Leachate

concentration

(mg/l)

Xylenes (total) .................................................................................................................................................. 0.22 0.0015

1These levels represent the highest concentration of each constituent found in any one sample. These levels do not necessarily represent the

specific levels found in one sample.

E. How Did EPA Evaluate the Risk of

Delisting the Waste?

For this delisting determination, EPA

used such information gathered to

identify plausible exposure routes (i.e.,

ground water, surface water, air) for

hazardous constituents present in the

petitioned waste. The EPA determined

that disposal in a Subtitle D landfill is

the most reasonable, worst-case disposal

scenario for Tenneco’s petitioned waste.

EPA applied the Delisting Risk

Assessment Software (DRAS) described

in 65 FR 58015 (September 27, 2000)

and 65 FR 75637 (December 4, 2000), to

predict the maximum allowable

concentrations of hazardous

constituents that may release from the

petitioned waste after disposal and

determined the potential impact of the

disposal of Tenneco’s petitioned waste

on human health and the environment.

A copy of this software can be found on

the world wide web at www.epa.gov/

earth1r6/6pd/rcra_c/pd-o/dras.htm. In

assessing potential risks to ground

water, EPA used the maximum

estimated waste volumes and the

maximum reported extract

concentrations as inputs to the DRAS

program to estimate the constituent

concentrations in the ground water at a

hypothetical receptor well down

gradient from the disposal site. Using

the risk level (carcinogenic risk of 10¥5

and non-cancer hazard index of 0.1), the

DRAS program can back-calculate the

acceptable receptor well concentrations

(referred to as compliance-point

concentrations) using standard risk

assessment algorithms and Agency

health-based numbers. Using the

maximum compliance-point

concentrations and the EPA Composite

Model for Leachate Migration with

Transformation Products (EPACMTP)

fate and transport modeling factors, the

DRAS further back-calculates the

maximum permissible waste constituent

concentrations not expected to exceed

the compliance-point concentrations in

groundwater.

The EPA believes that the EPACMTP

fate and transport model represents a

reasonable worst-case scenario for

possible ground water contamination

resulting from disposal of the petitioned

waste in a landfill, and that a reasonable

worst-case scenario is appropriate when

evaluating whether a waste should be

relieved of the protective management

constraints of RCRA Subtitle C. The use

of some reasonable worst-case scenarios

resulted in conservative values for the

compliance-point concentrations and

ensures that the waste, once removed

from hazardous waste regulation, will

not pose a significant threat to human

health or the environment.

The DRAS also uses the maximum

estimated waste volumes and the

maximum reported total concentrations

to predict possible risks associated with

releases of waste constituents through

surface pathways (e.g., volatilization or

wind-blown particulate from the

landfill). As in the above ground water

analyses, the DRAS uses the risk level,

the health-based data and standard risk

assessment and exposure algorithms to

predict maximum compliance-point

concentrations of waste constituents at

a hypothetical point of exposure. Using

fate and transport equations, the DRAS

uses the maximum compliance-point

concentrations and back-calculates the

maximum allowable waste constituent

concentrations (or ‘‘delisting levels’’).

In most cases, because a delisted

waste is no longer subject to hazardous

waste control, EPA is generally unable

to predict, and does not presently

control, how a petitioner will manage a

waste after delisting. Therefore, EPA

currently believes that it is

inappropriate to consider extensive sitespecific factors when applying the fate

and transport model. The EPA does

control the type of unit where the waste

is disposed. The waste must be disposed

in the type of unit the fate and transport

model evaluates.

The EPA also considers the

applicability of ground water

monitoring data during the evaluation of

delisting petitions. In this case, Tenneco

has never directly disposed of this

material in its solid waste landfill, so no

representative data exists. Therefore,

EPA has determined that it would be

unnecessary to request ground water

monitoring data.

The EPA believes that the

descriptions of Tenneco’s hazardous

waste process and analytical

characterization provide a reasonable

basis to conclude that the likelihood of

migration of hazardous constituents

from the petitioned waste will be

substantially reduced so that short-term

and long-term threats to human health

and the environment are minimized.

Thus, EPA should grant Tenneco’s

petition for a one-time exclusion of the

stabilized sludge.

The DRAS results which calculate the

maximum allowable concentration of

chemical constituents in the waste are

presented in Table II. Based on the

DRAS, the petitioned waste should be

delisted because no constituents of

concern exceed the maximum allowable

concentrations.

TABLE II.—DRAS MAXIMUM ALLOWABLE CONCENTRATIONS OF CONSTITUENTS IN LEACHATE

Constituent

DRAS maximum

allowable

Leachate

concentration

(mg/l)

Antimony .......................................................................................................................................................................................... 15.1

Arsenic ............................................................................................................................................................................................. 0.274

Barium .............................................................................................................................................................................................. 100

Benzene ........................................................................................................................................................................................... 0.163

Federal Register / Vol. 66, No. 92 / Friday, May 11, 2001 / Proposed Rules 24089

TABLE II.—DRAS MAXIMUM ALLOWABLE CONCENTRATIONS OF CONSTITUENTS IN LEACHATE—Continued

Constituent

DRAS maximum

allowable

Leachate

concentration

(mg/l)

Cadmium .......................................................................................................................................................................................... 1.0

Cis-1,3-Dichloropropene .................................................................................................................................................................. 93800

Ethylbenzene ................................................................................................................................................................................... 55.8

Lead ................................................................................................................................................................................................. 5.0

Mercury ............................................................................................................................................................................................ 0.2

Methyl ethyl ketone .......................................................................................................................................................................... 200

Nickel ............................................................................................................................................................................................... 827

Tetrachloroethylene ......................................................................................................................................................................... 0.7

Toluene ............................................................................................................................................................................................ 98.5

1,1,1-Trichloroethane ....................................................................................................................................................................... 23.2

Trichloroethylene ............................................................................................................................................................................. 0.5

Xylenes (total) .................................................................................................................................................................................. 1750

F. What Did EPA Conclude About

Tenneco’s Analysis?

The EPA concluded, after reviewing

Tenneco’s processes that no other

hazardous constituents of concern, other

than those for which tested, are likely to

be present or formed as reaction

products or by products in Tenneco’s

waste. In addition, on the basis of

explanations and analytical data

provided by Tenneco, pursuant to

section 260.22, the EPA concludes that

the petitioned waste does not exhibit

any of the characteristics of ignitability,

corrosivity, or reactivity. See §§ 261.21,

261.22, and 261.23, respectively.

G. What Other Factors Did EPA

Consider?

During the evaluation of Tenneco’s

petition, EPA also considered the

potential impact of the petitioned waste

via non-ground water routes (i.e., air

emission and surface runoff). With

regard to airborne dispersion in

particular, EPA believes that exposure

to airborne contaminants from

Tenneco’s petitioned waste is unlikely.

Therefore, no appreciable air releases

are likely from Tenneco’s waste under

any likely disposal conditions. The EPA

evaluated the potential hazards

resulting from the unlikely scenario of

airborne exposure to hazardous

constituents released from Tenneco’s

waste in an open landfill. The results of

this worst-case analysis indicated that

there is no substantial present or

potential hazard to human health and

the environment from airborne exposure

to constituents from Tenneco’s

stabilized sludge. A description of

EPA’s assessment of the potential

impact of Tenneco’s waste, regarding

airborne dispersion of waste

contaminants, is presented in the RCRA

public docket for today’s proposed rule,

F–00–ARDEL–TENNECO.

The EPA also considered the potential

impact of the petitioned waste via a

surface water route. The EPA believes

that containment structures at

municipal solid waste landfills can

effectively control surface water runoff,

as the Subtitle D regulations (See 56 FR

50978, October 9, 1991) prohibit

pollutant discharges into surface waters.

Furthermore, the concentrations of any

hazardous constituents dissolved in the

runoff will tend to be lower than the

levels in the TCLP leachate analyses

reported in today’s notice due to the

aggressive acidic medium used for

extraction in the TCLP. The EPA

believes that, in general, leachate

derived from the waste is unlikely to

directly enter a surface water body

without first traveling through the

saturated subsurface where dilution and

attenuation of hazardous constituents

will also occur. Leachable

concentrations provide a direct measure

of solubility of a toxic constituent in

water and are indicative of the fraction

of the constituent that may be mobilized

in surface water as well as ground

water.

Based on the reasons discussed above,

EPA believes that the contamination of

surface water through runoff from the

waste disposal area is very unlikely.

Nevertheless, EPA evaluated the

potential impacts on surface water if

Tenneco’s waste were released from a

municipal solid waste landfill through

runoff and erosion. See, the RCRA

public docket for today’s proposed rule

for further information on the potential

surface water impacts from runoff and

erosion. The estimated levels of the

hazardous constituents of concern in

surface water would be well below

health-based levels for human health, as

well as below EPA Chronic Water

Quality Criteria for aquatic organisms

(USEPA, OWRS, 1987). The EPA,

therefore, concluded that Tenneco’s

stabilized sludge is not a present or

potential substantial hazard to human

health and the environment via the

surface water exposure pathway.

H. What Is EPA’s Evaluation of This

Delisting Petition?

The descriptions of Tenneco’s

hazardous waste process and analytical

characterization, with the proposed

verification testing requirements (as

discussed later in this document),

provide a reasonable basis for EPA to

grant the exclusion. The data submitted

in support of the petition show that

constituents in the waste are below the

maximum allowable leachable

concentrations (see Table II). We believe

Tenneco’s process will substantially

reduce the likelihood of migration of

hazardous constituents from the

petitioned waste. Tenneco’s process also

minimizes short-term and long-term

threats from the petitioned waste to

human health and the environment.

Thus, EPA believes we should grant

Tenneco an exclusion for the stabilized

sludge. The EPA believes the data

submitted in support of the petition

show Tenneco’s process can render the

stabilized sludge nonhazardous.

We have reviewed the sampling

procedures used by Tenneco and have

determined they satisfy EPA criteria for

collecting representative samples of

variable constituent concentrations in

the stabilized sludge. The data

submitted in support of the petition

show that constituents in Tenneco’s

waste are presently below the

compliance point concentrations used

in the delisting decision-making and

would not pose a substantial hazard to

the environment. The EPA believes that

Tenneco has successfully demonstrated

that the stabilized sludge is

nonhazardous.

24090 Federal Register / Vol. 66, No. 92 / Friday, May 11, 2001 / Proposed Rules

The EPA therefore, proposes to grant

a one-time exclusion to the Tenneco

Automotive, in Paragould, Arkansas, for

the stabilized sludge described in its

petition. The EPA’s decision to exclude

this waste is based on descriptions of

the treatment activities associated with

the petitioned waste and

characterization of the stabilized sludge.

If we finalize the proposed rule, the

Agency will no longer regulate the

petitioned waste under parts 262

through 268 and the permitting

standards of part 270.

IV. Next Steps

A. With What Conditions Must the

Petitioner Comply?

The petitioner, Tenneco, must comply

with the requirements in 40 CFR part

261, appendix IX, Table 1. The text

below gives the rationale and details of

those requirements.

If the proposed exclusion is made

final, it will apply only to 1,800 cubic

yards of stabilized sludge. This is a onetime disposal of the sludge. We would

require Tenneco to file a new delisting

petition if it generates more than 1,800

cubic yards of waste. Tenneco must

manage waste volumes greater than

1,800 cubic yards of stabilized sludge as

hazardous until we grant a new

exclusion.

If this exclusion becomes final,

Tenneco’s management of the wastes

covered by this petition would be

relieved from Subtitle C jurisdiction.

Tenneco would be required to either

treat, store, or dispose of the waste in an

on-site facility that has a state permit,

license, or is registered to manage

municipal or industrial solid waste. If

not, Tenneco must ensure that it

delivers the waste to an off-site storage,

treatment, or disposal facility that has a

state permit, license, or is registered to

manage municipal or industrial solid

waste.

(1) Reopener Language

The purpose of this condition is to

require Tenneco to disclose new or

different information related to a

condition at the facility or disposal of

the waste if it is pertinent to the

delisting. This provision will allow EPA

to reevaluate the exclusion if a source

provides new or additional information

to the Agency. The EPA will evaluate

the information on which we based the

decision to see if it is still correct, or if

circumstances have changed so that the

information is no longer correct or

would cause EPA to deny the petition

if presented. This provision expressly

requires Tenneco to report differing site

conditions or assumptions used in the

petition within 10 days of discovery. If

EPA discovers such information itself or

from a third party, it can act on it as

appropriate. The language being

proposed is similar to those provisions

found in RCRA regulations governing

no-migration petitions at section 268.6.

The EPA believes that we have the

authority under RCRA and the

Administrative Procedures Act, 5 U.S.C.

551 (1978) et seq., to reopen a delisting

decision. We may reopen a delisting

decision when we receive new

information that calls into question the

assumptions underlying the delisting.

The Agency believes a clear statement

of its authority in delistings is merited

in light of Agency experience. See

Reynolds Metals Company at 62 FR

37694 (July 14, 1997) and 62 FR 63458

(December 1, 1997) where the delisted

waste leached at greater concentrations

in the environment than the

concentrations predicted when

conducting the TCLP, thus leading the

Agency to repeal the delisting. If an

immediate threat to human health and

the environment presents itself, EPA

will continue to address these situations

case by case. Where necessary, EPA will

make a good cause finding to justify

emergency rulemaking. See APA section

553(b).

(2) Notification Requirements

In order to adequately track wastes

that have been delisted, EPA is

requiring that Tenneco provide a onetime notification to any State regulatory

agency through which or to which the

delisted waste is being carried. This

notification requirement must be met if

the waste is transported off-site.

Tenneco must provide this notification

within 60 days of commencing this

activity.

B. What Happens If Tenneco Violates

the Terms and Conditions?

If Tenneco violates the terms and

conditions established in the exclusion,

the Agency will start procedures to

withdraw the exclusion. Where there is

an immediate threat to human health

and the environment, the Agency will

evaluate the need for enforcement

activities on a case-by-case basis. The

Agency expects Tenneco to conduct the

appropriate waste analysis and comply

with the criteria explained above in

Condition 1 of the exclusion.

V. Public Comments

A. How Can I as an Interested Party

Submit Comments?

The EPA is requesting public

comments on this proposed decision.

Please send three copies of your

comments. Send two copies to William

Gallagher, Delisting Section,

Multimedia Planning and Permitting

Division (6PD–O), Environmental

Protection Agency (EPA), 1445 Ross

Avenue, Dallas, Texas 75202. Send a

third copy to the Arkansas Department

of Environmental Quality, P.O. Box

8913, Little Rock, Arkansas, 72209–8913

Identify your comments at the top with

this regulatory docket number: ‘‘F–00–

ARDEL–TENNECO.’’

You should submit requests for a

hearing to Carl Edlund, Director,

Multimedia Planning and Permitting

Division (6PD), Environmental

Protection Agency, 1445 Ross Avenue,

Dallas, Texas 75202.

B. How May I Review the Docket or

Obtain Copies of the Proposed

Exclusion?

You may review the RCRA regulatory

docket for this proposed rule at the

Environmental Protection Agency

Region 6, 1445 Ross Avenue, Dallas,

Texas 75202. It is available for viewing

in the EPA Freedom of Information Act

Review Room from 9:00 a.m. to 4:00

p.m., Monday through Friday, excluding

Federal holidays. Call (214) 665–6444

for appointments. The public may copy

material from any regulatory docket at

no cost for the first 100 pages, and at

fifteen cents per page for additional

copies.

VI. Regulatory Impact

Under Executive Order 12866, EPA

must conduct an ‘‘assessment of the

potential costs and benefits’’ for all

‘‘significant’’ regulatory actions.

The proposal to grant an exclusion is

not significant, since its effect, if

promulgated, would be to reduce the

overall costs and economic impact of

EPA’s hazardous waste management

regulations. This reduction would be

achieved by excluding waste generated

at a specific facility from EPA’s lists of

hazardous wastes, thus enabling a

facility to manage its waste as

nonhazardous.

Because there is no additional impact

from today’s proposed rule, this

proposal would not be a significant

regulation, and no cost/benefit

assessment is required. The Office of

Management and Budget (OMB) has also

exempted this rule from the requirement

for OMB review under section (6) of

Executive Order 12866.

VII. Regulatory Flexibility Act

Under the Regulatory Flexibility Act,

5 U.S.C. 601–612, whenever an agency

is required to publish a general notice

of rulemaking for any proposed or final

rule, it must prepare and make available

Federal Register / Vol. 66, No. 92 / Friday, May 11, 2001 / Proposed Rules 24091

for public comment a regulatory

flexibility analysis which describes the

impact of the rule on small entities (that

is, small businesses, small

organizations, and small governmental

jurisdictions). No regulatory flexibility

analysis is required, however, if the

Administrator or delegated

representative certifies that the rule will

not have any impact on a small entities.

This rule, if promulgated, will not

have an adverse economic impact on

small entities since its effect would be

to reduce the overall costs of EPA’s

hazardous waste regulations and would

be limited to one facility. Accordingly,

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.

VIII. Paperwork Reduction Act

Information collection and recordkeeping requirements associated with

this proposed rule have been approved

by the Office of Management and

Budget (OMB) under the provisions of

the Paperwork Reduction Act of 1980

(Public Law 96–511, 44 U.S.C. 3501 et

seq.) and have been assigned OMB

Control Number 2050–0053.

IX. 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. The 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.

The EPA finds that today’s delisting

decision is deregulatory in nature and

does not impose any enforceable duty

on any State, local, or tribal

governments or the private sector. In

addition, the proposed delisting

decision does not establish any

regulatory requirements for small

governments and so does not require a

small government agency plan under

UMRA section 203.

X. Executive Order 13045

The Executive Order 13045 is entitled

‘‘Protection of Children from

Environmental Health Risks and Safety

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

This order applies to any rule that EPA

determines (1) is economically

significant as defined under Executive

Order 12866, and (2) the environmental

health or safety risk addressed by the

rule has a disproportionate effect on

children. If the regulatory action meets

both criteria, the Agency must evaluate

the environmental health or safety

effects of the planned rule on children,

and explain why the planned regulation

is preferable to other potentially

effective and reasonably feasible

alternatives considered by the Agency.

This proposed rule is not subject to

Executive Order 13045 because this is

not an economically significant

regulatory action as defined by

Executive Order 12866.

XI. Executive Order 13084

Because this action does not involve

any requirements that affect Indian

Tribes, the requirements of section 3(b)

of Executive Order 13084 do not apply.

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly

affects or uniquely affects that

communities of Indian tribal

governments, and that imposes

substantial direct compliance costs on

those communities, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments.

If the mandate is unfunded, EPA must

provide to the Office of Management

and Budget, in a separately identified

section of the preamble to the rule, a

description of the extent of EPA’s prior

consultation with representatives of

affected tribal governments, a summary

of the nature of their concerns, and a

statement supporting the need to issue

the regulation.

In addition, Executive Order 13084

requires EPA to develop an effective

process permitting elected and other

representatives of Indian tribal

governments ‘‘to meaningful and timely

input’’ in the development of regulatory

policies on matters that significantly or

uniquely affect their communities of

Indian tribal governments. This action

does not involve or impose any

requirements that affect Indian Tribes.

Accordingly, the requirements of

section 3(b) of Executive Order 13084

do not apply to this rule.

XII. National Technology Transfer and

Advancement Act

Under section 12(d) if the National

Technology Transfer and Advancement

Act, the Agency is directed 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,

business practices, etc.) developed or

adopted by voluntary consensus

standard bodies. Where available and

potentially applicable voluntary

consensus standards are not used by

EPA, the Act requires that Agency to

provide Congress, through the OMB, an

explanation of the reasons for not using

such standards.

This rule does not establish any new

technical standards and thus, the

Agency has no need to consider the use

of voluntary consensus standards in

developing this final rule.

XIII. Executive Order 13132 Federalism

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

24092 Federal Register / Vol. 66, No. 92 / Friday, May 11, 2001 / Proposed Rules

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.

Lists of Subjects in 40 CFR Part 261

Environmental protection, Hazardous

waste, Recycling, Reporting and

recordkeeping requirements.

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

6921(f).

Dated: March 12, 2001.

Carl E. Edlund,

P.E., Director, Multimedia Planning and

Permitting Division, Region 6.

For the reasons set out in the

preamble, 40 CFR part 261 is proposed

to be amended as follows:

PART 261—IDENTIFICATION AND

LISTING OF HAZARDOUS WASTE

1. The authority citation for part 261

continues to read as follows:

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

6922, and 6938.

2. In Table 1 of Appendix IX of part

261 it is proposed to add the following

waste stream in alphabetical order by

facility to read as follows:

Appendix IX to Part 261—Waste

Excluded Under §§ 260.20 and 260.22

TABLE 1.—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES

Facility Address Waste description

*******

Tenneco Automotive.Paragould, AR .. Stabilized sludge from electroplating operations, excavated from the Finch Road Landfill and currently

stored in containment cells by Tenneco (EPA Hazardous Waste Nos. F006). This is a one-time exclusion for 1,800 cubic yards of stabilized sludge. This exclusion was published on May 11, 2001.

(1) Reopener Language:

(A) If, anytime after disposal of the delisted waste, Tenneco possesses or is otherwise made

aware of any environmental data (including but not limited to leachate data or groundwater monitoring data) or any other data relevant to the delisted waste indicating that any constituent identified for the delisting verification testing is at level higher than the delisting level allowed by the

Regional Administrator or his delegate in granting the petition, then the facility must report the

data, in writing, to the Regional Administrator or his delegate within 10 days of first possessing

or being made aware of that data.

(B) If Tenneco fails to submit the information described in (2)(A) or if any other information is received from any source, the Regional Administrator or his delegate will make a preliminary determination as to whether the reported information requires Agency action to protect human

health or the environment. Further action may include suspending, or revoking the exclusion, or

other appropriate response necessary to protect human health and the environment.

(C) If the Regional Administrator or his delegate determines that the reported information does require Agency action, the Regional Administrator or his delegate will notify the facility in writing of

the actions the Regional Administrator or his delegate believes are necessary to protect human

health and the environment. The notice shall include a statement of the proposed action and a

statement providing the facility with an opportunity to present information as to why the proposed

Agency action is not necessary. The facility shall have 10 days from the date of the Regional

Administrator or his delegate’s notice to present such information.

(D) Following the receipt of information from the facility described in (1)(C) or (if no information is

presented under (1)(C)) the initial receipt of information described in (1)(A), the Regional Administrator or his delegate will issue a final written determination describing the Agency actions that

are necessary to protect human health or the environment. Any required action described in the

Regional Administrator or his delegate’s determination shall become effective immediately, unless the Regional Administrator or his delegate provides otherwise.

(2) Notification Requirements:

Tenneco must do following before transporting the delisted waste off-site: Failure to provide this

notification will result in a violation of the delisting petition and a possible revocation of the exclusion.

(A) Provide a one-time written notification to any State Regulatory Agency to which or through

which they will transport the delisted waste described above for disposal, 60 days before beginning such activities.

(B) Update the one-time written notification if Tenneco ships the delisted waste to a different disposal facility.

*******

[FR Doc. 01–11912 Filed 5–10–01; 8:45 am]

BILLING CODE 6560–50–P