[Federal Register Volume 66, Number 93 (Monday, May 14, 2001)]
[Rules and Regulations]
[Pages 24272-24280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12042]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-6950-2]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) today is 
granting a petition submitted by Tyco Printed Circuit Group, Melbourne 
Division, Melbourne, Florida, (Tyco), formerly Advanced Quick Circuits, 
L.P., to exclude (or ``delist'') a certain hazardous waste from the 
list of hazardous wastes under RCRA regulation. Tyco generates the 
petitioned waste by treating liquid waste from Tyco's printed circuit 
board manufacturing processes. The waste so generated is a wastewater 
treatment sludge that meets the definition of F006. Based on careful 
analyses of the waste-specific information provided by the petitioner, 
the Agency has concluded that Tyco's petitioned waste will not 
adversely affect human health and the environment. This action responds 
to Tyco's petition to delist this waste on a ``generator-specific'' 
basis from the hazardous waste lists, and to public

[[Page 24273]]

comments on the proposed rule. In response to comments received on the 
proposed rule, the delisting levels in this final rule are based, in 
part, on the EPACML model, rather than the generic levels for high 
temperature metal recovery residues. In accordance with the conditions 
specified in this final rule, the 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 14, 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, SW., Atlanta, Georgia 
30303, and is available for viewing from 9 a.m. to 4 p.m., Monday 
through Friday, excluding Federal holidays.
    The reference number for this docket is R4-99-01-TycoF. 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 Florida Department of Environmental protection, 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, SW., Atlanta, Georgia 30303, (404) 562-8604, 
or call, toll free, (800) 241-1754, and leave a message, with your name 
and phone number, for Ms. Sophianopoulos to return your call. Questions 
may also be e-mailed to Ms. Sophianopoulos at 
<a href="/cdn-cgi/l/email-protection#6a19051a02030b04051a051f06051944001f0e132a0f1a0b440d051c"><span class="__cf_email__" data-cfemail="52213d223a3b333c3d223d273e3d217c3827362b123722337c353d24">[email protected]</span></a>. You may also contact Janine Kraemer, 
Central District Office, Florida Department of Environmental Protection 
(FDEP), 3319 Maguire Boulevard, Suite 232, Orlando, Florida 32803-3767. 
If you wish to copy documents at FDEP, please contact Ms. Kraemer 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 Tyco Printed Circuit 
Group, Melbourne Division, Melbourne, FL Circuits, LP (Tyco), 
Melbourne, Florida
    A. What Waste Did Tyco Petition EPA to Delist?
    B. What Information Did Tyco 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 Secs. 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, D.C. and all EPA Regions.
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    \1\ This 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
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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 Sec. 261.11 
(a)(2) or (a)(3). Discarded commercial chemical product wastes which 
meet the listing criteria are listed in Sec. 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, Secs. 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 Sec. 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 Sec. 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 Columbia vacated the ``mixture/derived-
from'' rules and remanded them to the EPA on procedural grounds. Shell 
Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). On March 3, 1992, EPA 
reinstated the mixture and derived-from rules, and solicited comments 
on other ways to regulate waste mixtures and residues (57 FR 7628). 
These rules became final on October 30, 1992, 57 FR 49278), and should 
be consulted for more information regarding waste mixtures and solid 
wastes derived from treatment, storage, or disposal of a hazardous 
waste. The mixture and

[[Page 24274]]

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 Secs. 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?

    Tyco manufactures printed circuit boards, and is seeking a 
delisting for the sludge generated by treating liquid wastes from its 
electroplating operations. This waste meets the listing definition of 
F006 in 40 CFR Section 261.31\2\
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    \2\ ``Wastewater sludges from electroplating operations except 
from the following processes: (1) Sulfuric acid anodizing of 
aluminum; (2) tin plating on carbon steel; (3) zinc plating 
(segregated basis) on carbon steel; (4) aluminum or zinc-aluminum 
plating on carbon steel; and (6) chemical etching and milling of 
aluminum.''
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    Tyco petitioned the Administrator, on August 26, 1998, to exclude 
this F006 waste, on a generator-specific basis, from the lists of 
hazardous wastes in 40 CFR part 261, subpart D. In accordance with the 
delegation of delisting authority, the Administrator transmitted the 
petition to EPA, Region 4, and on September 11, 1998, Tyco submitted 
the petition to EPA, Region 4.
    The hazardous constituents of concern for which F006 was listed are 
cadmium, hexavalent chromium, nickel, and cyanide (complexed). Tyco 
petitioned the EPA to exclude its F006 waste because Tyco does not 
believe that the waste meets the criteria of the listing.
    Tyco claims that its F006 waste is not hazardous because the 
constituents of concern are either present at low concentrations, or do 
not leach out of the waste at significant concentrations. Tyco also 
believes that this waste is not hazardous for any other reason (i.e., 
there are 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 Tyco's petition, the Agency 
proposed to grant a delisting to Tyco, on August 8, 2000. See 65 FR 
48434-48444, August 8, 2000 for details. Today's rulemaking addresses 
public comments received on the proposed rule and finalizes the 
proposed decision to grant Tyco's petition for delisting.

II. Summary of Delisting Petition Submitted by Tyco Printed Circuit 
Group, Melbourne Division, Melbourne, FL (Tyco), Melbourne, Florida

A. What Waste Did Tyco Petition EPA To Delist?

    Tyco petitioned EPA, Region 4, on September 11, 1998, to exclude a 
maximum annual weight of 300 tons of its F006 waste, on a generator-
specific basis, from the lists of hazardous wastes in subpart D of 40 
CFR part 261. Tyco operates two electroplating operations on John Rodes 
Boulevard in Melbourne, Florida, that electroplate copper, tin/lead, 
nickel, and gold in the process of manufacturing printed circuit 
boards. The sludge generated by treatment of the wastewater from these 
operations meets the listing definition of F006 in Sec. 261.31.

B. What Information Did Tyco Submit To Support This Petition?

    In support of its petition, Tyco submitted: (1) Descriptions of its 
manufacturing and wastewater treatment processes, the generation point 
of the petitioned waste and the manufacturing steps that contribute to 
its generation; (2) Material Safety Data Sheets (MSDSs) for process 
materials; (3) quantities of petitioned waste generated each year from 
1983 through 1997; (4) results of analysis for water, metals, cyanide, 
sulfide, and oil and grease in the waste; (5) results of the analysis 
of waste leachate obtained by means of the Toxicity Characteristic 
Leaching Procedure ((TCLP), SW-846 Method 1311\3\) for metals; (6) 
results of the determinations for the hazardous characteristics of 
ignitability, corrosivity, and reactivity; (7) results for total 
analysis of metals; and (8) results of the Multiple Extraction 
Procedure (MEP), SW-846 Method 1320, analysis of the waste to determine 
long-term resistance to leaching.
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    \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 final rule as ``SW-846,'' 
followed by the appropriate method number.
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    The hazardous constituents of concern for which F006 was listed are 
cadmium, hexavalent chromium, nickel, and cyanide (complexed). Tyco 
petitioned the EPA to exclude its F006 waste because Tyco does not 
believe that the waste meets the criteria of the listing.
    Tyco submitted to the EPA analytical data on nine samples of its 
F006 waste collected during a six-month 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 TCLP extracts of the samples 
were below the TC regulatory levels. The maximum reported concentration 
of cyanide was below the generic exclusion level for high temperature 
metal recovery (HTMR) residues in 40 CFR 261.3(c)(2)(ii)(C)(1). Nickel 
was undetected in the TCLP extract at a detection level of 0.50 
milligrams per liter, and the maximum reported concentration of nickel 
in unextracted samples was 2,100 milligrams per kilogram. See the 
proposed rule, 65 FR 48434-48444, August 8, 2000, for a detailed 
discussion of the information submitted by Tyco. 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 Tyco's petitioned waste should be excluded from hazardous 
waste control. EPA, therefore, is granting a final generator-specific 
exclusion to Tyco, of Melbourne, Florida, for a maximum annual 
generation rate of 590 cubic yards of the waste described in its 
petition as EPA Hazardous Waste Number F006. This waste is required to 
undergo verification

[[Page 24275]]

testing before being considered as excluded from Subtitle C regulation. 
Requirements for waste to be land disposed or smelted have been 
included in this exclusion. The exclusion applies only to the waste as 
described in Tyco's petition, dated August 1998.
    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 on-site 
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. Tyco's 
preferred method of waste management is to send its excluded waste to a 
smelter for metal recovery.

B. What Are the Terms of This Exclusion?

    In the rule proposed on August 8, 2000, EPA requested public 
comment on which of the following possible methods should be used to 
set delisting levels for the petitioned waste (see 65 FR 48436, August 
8, 2000):
    (1) Delisting levels based on the EPACML model;
    (2) Delisting levels equal to either the Universal Treatment 
Standards (UTS) levels of the Land Disposal Restrictions (LDR) 
regulations in 40 CFR part 268 or the generic exclusion levels for 
residues from treatment of F006 by High Temperature Metal Recovery 
(HTMR), in 40 CFR 261.3(c)(2)(ii)(C)(1), whichever yields the lower 
value;
    (3) Setting limits on total concentrations of constituents in the 
waste of 20,000 milligrams per kilogram (mg/kg) for nickel, and 500 mg/
kg of each of the metals, barium, cadmium, chromium, and lead;
    (4) Use of the MEP to evaluate the long-term resistance of the 
waste to leaching in a landfill; and
    (5) Delisting levels for waste that will be sent to a smelter for 
metal recovery, calculated in accordance with EPA's Human Health Risk 
Assessment Protocol (HHRAP) for combustion risk assessment or set equal 
to the same delisting levels as for land disposal, with the additional 
requirement that the smelting facility be in compliance with a permit 
issued under the authority of the Clean Air Act.
    After considering all public comments on the proposed rule, EPA is 
granting Tyco, 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, whether disposed in a Subtitle D landfill or smelted for metal 
recovery. Tyco 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 EPACML model, of 100 for Barium; 0.5 for Cadmium; 5.0 for 
Chromium; 20 for Cyanide; 1.5 for Lead; and 73 for Nickel;
    (2) Delisting levels based on total concentrations, in milligrams 
of constituent per kilogram of unextracted waste, of 2,000 for Barium; 
500 for Cadmium; 1,000 for Chromium; 200 for Cyanide (Total, not 
Amenable); 2,000 for Lead; and 20,000 for Nickel; and
    (3) Recordkeeping and certification requirements for waste to be 
smelted for metal recovery, which include records in the facility 
files, available for inspection by EPA or the State of Florida, that 
contain names, addresses, telephone numbers, and contact persons for 
smelters; amounts of waste smelted; certification that smelters are 
subject to regulatory controls on discharges to air, water, and land; 
and analytical data on smelted wastes to demonstrate compliance with 
conditions (1) and (2).
    EPA believes that the limits on total concentrations in condition 
(2) above are protective of human health and the environment. In 
response to public comment, EPA set higher limits on total 
concentrations in today's final rule than in the proposed rule, because 
EPA agrees with the commenter that MEP analysis of the petitioned waste 
indicated long-term resistance to leaching (see 65 FR 48439, August 8, 
2000). 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.)
    In response to public comments, EPA is promulgating the 
recordkeeping and certification requirements for waste to be smelted, 
in today's final rule, instead of the proposed risk assessment in 
accordance with HHRAP or the proposed requirement for a permit under 
the Clean Air Act. EPA is retaining the proposed requirement that waste 
to be smelted meet the same delisting levels as waste to be landfilled.
    Table 1, Appendix IX of part 261 has been amended to add the three 
delisting conditions described above, to retain the verification and 
data submission requirements of the proposed rule (see 65 FR 48442-
48443, August 8, 2000), to delete delisting levels based on the generic 
exclusion levels for metal recovery in 40 CFR 261.3(c)(2)(ii)(C)(1), 
and to delete the requirement for a risk assessment based on EPA's 
Human Health Risk Assessment Protocol for combustion facilities. Thus, 
EPA is retaining in today's final rule to exclude Tyco's petitioned 
waste Conditions (2), (4), (5), (6), and (7) in Table 1, Appendix IX of 
part 261 of the proposed rule, and is changing proposed Conditions (1), 
(3) and (8), in response to public comments, as described in the three 
preceding paragraphs.

C. When Is the Delisting Effective?

    This rule is effective on May 14, 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 six-
month deadline is not necessary to achieve the purpose of section 3010, 
EPA believes that this exclusion should be effective immediately upon 
final publication.
    These reasons also provide a basis for making this rule effective 
immediately, upon final publication, under the Administrative Procedure 
Act, pursuant to 5 U.S.C. 553(d).

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.

[[Page 24276]]

    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, Tyco 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 65 
FR 48434-48444, August 8, 2000, from (1) the International Precious 
Metals Institute (IPMI) and (2) Delphi Automotive Systems (DAS). EPA 
commends and appreciates the thoughtful comments submitted by IPMI and 
DAS.

B. Comments and Responses From EPA

    Comment: IPMI stated that Tyco's sludge is a feedstock for copper 
and precious metal reclamation, rather than a material that is disposed 
of, and that EPA's proposal to delist the sludge is appropriate, 
because ``it facilitates the efficient and environmentally sound 
recovery of precious metals.'' However, EPA's proposal to use Universal 
Treatment Standards or generic exclusion limits for high temperature 
metal recovery (HTMR) residues as delisting levels is inappropriate. 
Delisting levels calculated on the basis of the EPACML model are very 
conservative and protective, particularly since they have been 
validated with the Multiple Extraction Procedure (MEP). HTMR levels are 
unnecessarily stringent, because the petitioned sludge ``has not, at 
the point of generation, been subjected to any HTMR processes.''
    Response: EPA believes that IPMI's point is well taken, and the 
final delisting levels in Appendix IX of part 261 are based, in part, 
on the EPACML model. See section III.A. and B. of today's preamble. EPA 
also agrees with the commenter that the MEP evaluation of Tyco's sludge 
supports the delisting decision and that Tyco's preferred method of 
waste management for the petitioned sludge is metal recovery rather 
than land disposal.
    Comment: IPMI disagrees with both of EPA's proposed methods of 
setting delisting levels for petitioned waste that will be sent to a 
smelter for metal recovery. Regarding proposed Method I, IPMI sees no 
reason why sludge to be smelted should have to meet the same delisting 
levels as landfilled sludge and disagrees with the Method I requirement 
that the smelter be permitted under the Clean Air Act. IPMI stated that 
precious metal recovery from secondary materials ``has been carried on 
for millennia,'' and the majority of sludges generated in the United 
States are smelted in other countries. IPMI believes that smelters 
should be and are well regulated in developed countries, and that the 
requirement for a Clean Air Act Permit would prohibit unduly the 
participation of foreign countries in the smelting business.
    Response: EPA appreciates IPMI's concerns regarding requirements 
for waste to be smelted. However, EPA believes that it is reasonable 
and that the Agency has an obligation to set conditions a waste must 
meet in order to be excluded from regulation as a listed hazardous 
waste under RCRA. EPA believes that the conditions described in Section 
III.A. and B. of today's preamble will be protective of human health 
and the environment, whether the waste is smelted for metal recovery or 
disposed in a Subtitle D landfill, and will not be unduly burdensome to 
Tyco. The requirement in proposed Method I for a Clean Air Act permit 
in addition to the same delisting levels as waste to be landfilled has 
been amended, in response to this commenter, with the recordkeeping and 
certification requirements described in today's preamble Section III.A. 
and B.
    Comment: IPMI agrees that analysis of feedstocks, exposure, and 
risk are applicable criteria for granting an air permit to a smelter. 
However, IPMI believes that the requirement for a risk assessment of 
smelting Tyco's sludge in accordance with EPA's HHRAP is inappropriate 
and unnecessary. The commenter asserts that Tyco's sludge has only one 
of the seven categories of compounds of potential concern in the HHRAP, 
in that it contains toxic metals. IPMI points out that these 
concentrations are quite small, and that the toxic metals in Tyco's 
sludge are common constituents of copper ore. IPMI also notes that 
Tyco's sludge could meet the requirements for a variance from being a 
solid waste, pursuant to 40 CFR 260.30, when it is to be smelted for 
metal recovery, and that there are no risk assessment requirements for 
smelters of such materials.
    Regarding chromium, IPMI states that the HHRAP is concerned with 
hexavalent, rather than trivalent, chromium, which Tyco does not use in 
its production processes. IPMI notes that Tyco's analytical data 
indicate very low concentrations of total chromium.
    Response: EPA agrees that human health and the environment can be 
protected, in this case, without requiring a risk assessment in 
accordance with the HHRAP. EPA believes that the delisting conditions 
of today's final rule are protective of human health and the 
environment. As discussed in today's preamble Section III.A. and B., 
Tyco's sludge, whether smelted or landfilled, must meet limits on 
concentrations of toxic constituents both in the TCLP extract of the 
waste and in the unextracted waste. In addition, Tyco must meet 
verification, recordkeeping, and certification requirements.
    With respect to chromium, EPA takes the conservative position that 
any chromium present is hexavalent, and calculates delisting levels 
accordingly.
    Comment: Delphi Automotive Systems (DAS) recommends using the 
EPACML model for delisting levels, instead of either the Universal 
Treatment Standards (UTS) of the Land Disposal Restrictions (LDR) 
regulations or generic exclusion levels for high temperature metal 
recovery (HTMR) residues. DAS believes that the EPACML model is 
appropriately conservative and is risk-based, rather than technology-
based as the UTS and HTMR values are.
    Response: After consideration of DAS's comment and discussion, 
Tyco's analytical profile for the petitioned sludge, and the Multiple 
Extraction Procedure (MEP) data indicating long-term resistance to 
leaching, EPA agrees with the commenter that the appropriate method of 
calculating delisting levels in the waste leachate is the EPACML model. 
(See today's preamble Section III.A and B.)
    Comment: DAS believes that it would be burdensome to require the 
MEP for all delisting petitions, due mainly to the cost of this 
analytical method. DAS believes that EPA should address any concerns 
that the MEP addresses by requiring disposal in a landfill that is in 
compliance with EPA Criteria for Municipal Solid Waste Landfills.
    Response: Each delisting petition is evaluated individually, and 
requiring the MEP for one petition does not mean that it will 
automatically be required for all. However, the MEP is useful as a 
measure of long-term resistance to leaching from a landfill, which is 
usually a concern of the general public. EPA agrees that it can require 
that delisted waste be disposed in a Subtitle D landfill, but believes 
that it is more protective of human health and the environment to 
calculate delisting levels

[[Page 24277]]

based on a distribution of landfill properties, rather than on one 
specific landfill. The MEP is useful, in that it simulates what would 
happen even if all a landfill's controls failed.
    Comment: DAS does not agree with EPA's proposal to set limits on 
total concentrations of constituents of concern in Tyco's unextracted 
waste. DAS states that the delisting levels in the TCLP extract, based 
on the EPACML model, are conservative and adequate, particularly since 
Tyco's constituents of concern are all non-volatile metals.
    Response: EPA agrees that the commenter's point is well taken. 
However, EPA is setting limits on total concentrations of constituents 
of concern in today's final rule, which EPA believes are protective of 
human health and the environment and which address concerns of the 
general public about delisted waste. After considering comments from 
DAS and IPMI, EPA has raised the proposed limits on total 
concentrations, as shown in today's preamble Section III.B, to values 
EPA believes are realistic and attainable 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.)
    Comment: DAS ``welcomes the Agency's consideration for establishing 
site specific limits for a smelter,'' but does not agree with the 
proposal to do a risk assessment for all constituents in accordance 
with the HHRAP. DAS states that Clean Air Act requirements for smelters 
should be adequate to address risk from most waste constituents, but 
also states that the HHRAP might be appropriate for constituents that 
are not usually present in raw materials for smelters. DAS believes the 
Agency should use specific language in the delisting final rule ``to 
direct how a delisted waste should be managed, specifically smelter, in 
this instance.''
    Response: EPA has taken into account DAS's comments about delisting 
levels for waste sent to a smelter, and is finalizing recordkeeping and 
certification requirements as a delisting condition to be met, in 
addition to limits on constituent concentrations in the TCLP extract of 
the petitioned waste and on total constituent concentrations in the 
unextracted waste. See today's preamble Section III.B. and Waste 
Description and Conditions (1), (3), and (8) of Table 1, Appendix IX, 
part 261.

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 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.

    Dated: February 26, 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.


[[Page 24278]]



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

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

                               Table 1.--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
               Facility                        Address                          Waste description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
Tyco Printed Circuit Group, Melbourne  Melbourne, Florida.....  Wastewater treatment sludge (EPA Hazardous Waste
 Division.                                                       No. F006) that Tyco Printed Circuit Group,
                                                                 Melbourne Division (Tyco) generates by treating
                                                                 wastewater from its circuit board manufacturing
                                                                 plant located on John Rodes Blvd. in Melbourne,
                                                                 Florida. This is a conditional exclusion for up
                                                                 to 590 cubic yards of waste (hereinafter
                                                                 referred to as ``Tyco Sludge'') that will be
                                                                 generated each year and disposed in a Subtitle
                                                                 D landfill or shipped to a smelter for metal
                                                                 recovery after May 14, 2001. Tyco must
                                                                 demonstrate that the following conditions are
                                                                 met for the exclusion to be valid. (Please see
                                                                 Condition (8) for certification and
                                                                 recordkeeping requirements that must be met in
                                                                 order for the exclusion to be valid for waste
                                                                 that is sent to a smelter for metal recovery.)
                                                                (1) 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 Tyco Sludge meet
                                                                 the delisting levels in Condition (3).
                                                                (A) Initial Verification Testing: Tyco must
                                                                 collect and analyze a representative sample of
                                                                 every batch, for eight sequential batches of
                                                                 Tyco sludge generated in its wastewater
                                                                 treatment system after May 14, 2001. A batch is
                                                                 the Tyco Sludge generated during one day of
                                                                 wastewater treatment. Tyco must analyze for the
                                                                 constituents listed in Condition (3). A minimum
                                                                 of four composite samples must be collected as
                                                                 representative of each batch. Tyco must report
                                                                 analytical test data, including quality control
                                                                 information, no later than 60 days after
                                                                 generating the first batch of Tyco Sludge to be
                                                                 disposed in accordance with the delisting
                                                                 Conditions (1) through (7).
                                                                (B) Subsequent Verification Testing: If the
                                                                 initial verification testing in Condition
                                                                 (1)(A) is successful, i.e., delisting levels of
                                                                 condition (3) are met for all of the eight
                                                                 initial batches, Tyco must test a minimum of 5%
                                                                 of the Tyco Sludge generated each year. Tyco
                                                                 must collect and analyze at least one composite
                                                                 sample representative of that 5%. The composite
                                                                 must be made up of representative samples
                                                                 collected from each batch included in the 5%.
                                                                 Tyco may, at its discretion, analyze composite
                                                                 samples gathered more frequently to demonstrate
                                                                 that smaller batches of waste are non-
                                                                 hazardous.
                                                                (2) Waste Holding and Handling: Tyco must store
                                                                 as hazardous all Tyco Sludge generated until
                                                                 verification testing as specified in Condition
                                                                 (1)(A) or (1)(B), as appropriate, is completed
                                                                 and valid analyses demonstrate that Condition
                                                                 (3) is satisfied. If the levels of constituents
                                                                 measured in the samples of Tyco Sludge do not
                                                                 exceed the levels set forth in Condition (3),
                                                                 then the Tyco Sludge is non-hazardous and must
                                                                 be managed in accordance with all applicable
                                                                 solid waste regulations. If constituent levels
                                                                 in a sample exceed any of the delisting levels
                                                                 set forth in Condition (3), the batch of Tyco
                                                                 Sludge generated during the time period
                                                                 corresponding to this sample must be retreated
                                                                 until it meets the delisting levels set forth
                                                                 in Condition (3), or managed and disposed of in
                                                                 accordance with Subtitle C of RCRA.
                                                                (3) Delisting Levels: All leachable
                                                                 concentrations for these metals and cyanide
                                                                 must not exceed the following levels (ppm):
                                                                 Barium--100; Cadmium--0.5; Chromium--5.0;
                                                                 Cyanide--20, Lead--1.5; and Nickel--73. 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.
                                                                (4) Changes in Operating Conditions: Tyco must
                                                                 notify EPA in writing when significant changes
                                                                 in the manufacturing or wastewater treatment
                                                                 processes are necessary (e.g., use of new
                                                                 chemicals not specified in the petition). EPA
                                                                 will determine whether these changes will
                                                                 result in additional constituents of concern.
                                                                 If so, EPA will notify Tyco in writing that the
                                                                 Tyco sludge must be managed as hazardous waste
                                                                 F006, pending receipt and evaluation of a new
                                                                 delisting petition. If EPA determines that the
                                                                 changes do not result in additional
                                                                 constituents of concern, EPA will notify Tyco,
                                                                 in writing, that Tyco must repeat Condition
                                                                 (1)(A) to verify that the Tyco Sludge continues
                                                                 to meet Condition (3) delisting levels.

[[Page 24279]]

 
                                                                (5) Data Submittals: Data obtained in accordance
                                                                 with Condition (1)(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
                                                                 notification is due no later than 60 days after
                                                                 generating the first batch of Tyco Sludge to be
                                                                 disposed in accordance with delisting
                                                                 Conditions (1) through (7). Records of
                                                                 analytical data from Condition (1) must be
                                                                 compiled, summarized, and maintained by Tyco
                                                                 for a minimum of three years, and must be
                                                                 furnished upon request by EPA or the State of
                                                                 Florida, 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 following
                                                                 certification statement to attest to the truth
                                                                 and accuracy of the data submitted:
                                                                Under civil and criminal penalty of law for the
                                                                 making or submission of false or fraudulent
                                                                 statements or representations (pursuant to the
                                                                 applicable provisions of the Federal Code,
                                                                 which include, but may not be limited to, 18
                                                                 U.S.C. 1001 and 42 U.S.C. 6928), I certify that
                                                                 the information contained or accompanying this
                                                                 document is true, accurate and complete.
                                                                As to the (those) identified section(s) of this
                                                                 document for which I cannot personally verify
                                                                 its (their) truth and accuracy, I certify as
                                                                 the company official having supervisory
                                                                 responsibility for the persons who, acting
                                                                 under my direct instructions, made the
                                                                 verification that this information is true,
                                                                 accurate and complete.
                                                                In the event that any of this information is
                                                                 determined by EPA in its sole discretion to be
                                                                 false, inaccurate or incomplete, and upon
                                                                 conveyance of this fact to the company, I
                                                                 recognize and agree that this exclusion of
                                                                 waste will be void as if it never had effect or
                                                                 to the extent directed by EPA and that the
                                                                 company will be liable for any actions taken in
                                                                 contravention of the company's RCRA and CERCLA
                                                                 obligations premised upon the company's void
                                                                 exclusion.
                                                                (6) Reopener Language: (A) If, anytime after
                                                                 disposal or shipment to a smelter of the
                                                                 delisted waste, Tyco 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, Tyco 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 (1)(B), does not meet the delisting
                                                                 requirements of Condition (3), Tyco 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 Tyco with an opportunity to
                                                                 present information as to why the proposed
                                                                 action is not necessary. Tyco shall have 10
                                                                 days from the date of EPA's notice to present
                                                                 such information. (E) Following the receipt of
                                                                 information from Tyco, 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.
                                                                (7) Notification Requirements: Tyco 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.

[[Page 24280]]

 
                                                                (8) Recordkeeping and Certification Requirements
                                                                 for Waste to be Smelted for Metal Recovery:
                                                                 Tyco must maintain in its facility files, and
                                                                 make available for inspection by EPA and the
                                                                 Florida Department of Environmental Protection
                                                                 (FDEP), records that include the name, address,
                                                                 telephone number, and contact person of each
                                                                 smelting facility used by Tyco for its delisted
                                                                 waste, quantities of waste shipped, analytical
                                                                 data for demonstrating that the delisting
                                                                 levels of Condition (3) are met, and a
                                                                 certification that the smelter(s) is(are)
                                                                 subject to regulatory controls on discharges to
                                                                 air, water, and land. The certification
                                                                 statement must be signed by a responsible
                                                                 official and contain the following language:
                                                                 Under civil and criminal penalty of law for the
                                                                 making or submission of false or fraudulent
                                                                 statements or representations (pursuant to the
                                                                 applicable provisions of the Federal Code,
                                                                 which include, but may not be limited to, 18
                                                                 U.S.C. 1001 and 42 U.S.C. 6928), I certify that
                                                                 the smelter(s) used for Tyco's delisted waste
                                                                 is(are) subject to regulatory controls on
                                                                 discharges to air, water, and land. As the
                                                                 company official having supervisory
                                                                 responsibility for plant operations, I certify
                                                                 that to the best of my knowledge this
                                                                 information is true, accurate and complete. In
                                                                 the event that any of this information is
                                                                 determined by EPA in its sole discretion to be
                                                                 false, inaccurate or incomplete, and upon
                                                                 conveyance of this fact to the company, I
                                                                 recognize and agree that this exclusion of
                                                                 waste will be void as if it never had effect or
                                                                 to the extent directed by EPA and that the
                                                                 company will be liable for any actions taken in
                                                                 contravention of the company's RCRA and CERCLA
                                                                 obligations premised upon the company's void
                                                                 exclusion.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 01-12042 Filed 5-11-01; 8:45 am]
BILLING CODE 6560-50-P


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