[Federal Register Volume 70, Number 168 (Wednesday, August 31, 2005)]
[Rules and Regulations]
[Pages 51638-51643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17359]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-7961-3]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA, also the Agency or 
we in this preamble) today is granting a petition to modify an 
exclusion (or delisting) from the lists of hazardous waste previously 
granted to BMW Manufacturing Co., LLC (BMW) in Greer, South Carolina. 
This action responds to a petition for amendment submitted by BMW to 
eliminate the total concentration limits in its wastewater treatment 
sludge covered by its current conditional exclusion.
    EPA received public comments on the November 26, 2004, Proposed 
Rule (69 FR 68851) and took into account all public comments before 
granting this final rule. The Agency re-evaluated the specific 
information initially provided by the petitioner in its original 
request and delistings granted to other automobile manufactures for 
their F019 waste. This final decision eliminates the total 
concentration limits for barium, cadmium, chromium, lead, nickel, and 
cyanide from its conditionally excluded wastewater treatment sludge 
from the requirements of the hazardous waste regulations under the 
Resource Conservation and Recovery Act (RCRA). The waste will still be 
subject to local, State, and Federal regulations for nonhazardous solid 
wastes.

DATES: Effective August 31, 2005.

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 9:00 a.m. to 4:00 p.m., Monday 
through Friday, excluding Federal holidays. The public may copy 
material from any regulatory docket at no cost for the first 100 pages, 
and at a cost of $0.15 per page for additional copies. For copying at 
the South Carolina Department of Health and Environmental Control, 
please see below.

FOR FURTHER INFORMATION CONTACT: For general and technical information 
concerning this final rule, please contact Kris Lippert, 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) 562-8605, 
or call, toll free (800) 241-1754, and leave a message, with your name 
and phone number, for Ms. Lippert to return your call. Questions may 
also be e-mailed to Ms. Lippert at <a href="/cdn-cgi/l/email-protection#9ef2f7eeeefbeceab0f5ecf7edeaf7f0defbeeffb0f9f1e8"><span class="__cf_email__" data-cfemail="dcb0b5acacb9aea8f2b7aeb5afa8b5b29cb9acbdf2bbb3aa">[email protected]</span></a>. You may 
also contact Cindy Carter, Appalachia III District, South Carolina 
Department of Health and Environmental Control (SCDHEC), 975C North 
Church Street, Spartanburg, South Carolina. If you wish to copy 
documents at SCDHEC, please contact Ms. Carter for copying procedures 
and costs.

SUPPLEMENTARY INFORMATION: The information in this section is organized 
as follows:

I. Overview Information
    A. What Action Is EPA Finalizing?
    B. Why Is EPA Approving This Petition for Amendment?
    C. What Are the Terms of This Exclusion?
    D. When Is the Final Amendment Effective?
    E. How Does This Action Affect States?

[[Page 51639]]

II. Background
    A. What Is a Delisting Petition?
    B. What Regulations Allow Hazardous Waste Generators to Delist 
Waste?
    C. What Information Must the Generator Supply?
III. EPA's Evaluation of the Waste Data
    A. What Waste Is the Subject of This amendment?
    B. How Did EPA Evaluate This Petition?
IV. Public Comments on the Proposed Amendment
    A. Who Submitted Comments on the Proposed Rule?
    B. Comments and Responses From EPA
V. Administrative Assessments

I. Overview Information

A. What Action Is EPA Finalizing?

    After evaluating BMW's petition and public comments received in 
response to the November 26, 2004, Proposed Rule (69 FR 68851), we are 
amending the current BMW's delisting to eliminate the total 
concentration limits for barium, cadmium, chromium, lead, nickel, and 
cyanide from its conditionally excluded wastewater treatment sludge 
from the requirements of the hazardous waste regulations under the 
Resource Conservation and Recovery Act (RCRA). The waste will still be 
subject to local, State, and Federal regulations for nonhazardous solid 
wastes.

B. Why Is EPA Approving This Petition for Amendment?

    EPA believes that the information provided by BMW provides a 
reasonable basis to eliminate all total concentration limits. We, 
therefore, grant BMW an amendment to its current delisting for an 
elimination of all total concentration limits on its delisted 
wastewater treatment sludge. EPA believes that this amendment to 
eliminate all concentration limits will not harm human health and the 
environment when disposed in a nonhazardous waste landfill, if the 
required delisting levels are met. EPA grants the elimination of all 
total concentration limits, based on descriptions of waste management 
and waste history, evaluation of the results of waste sample analysis, 
on the requirement that BMW's petitioned waste must meet the required 
delisting level of all the constituents of concern concentration limits 
as state in the May 2, 2001, Final Rule before disposal, and that no 
substantial public comments were received during the public comment 
period. The petitioned waste will not be subject to regulation under 40 
CFR parts 262 through 268 and the permitting standards of 40 CFR part 
270. Although management of the waste covered by this petition is 
relieved from Subtitle C jurisdiction, the waste will remain a solid 
waste under RCRA. As such, the waste must be handled in accordance with 
all applicable Federal, State, and local solid waste management 
regulations. Pursuant to RCRA section 3007, EPA may also sample and 
analyze the waste to determine if delisting conditions are met. EPA 
believes that BMW's petitioned waste will not harm human health and the 
environment when disposed in a nonhazardous waste landfill if the 
delisting levels are met as granted in the May 2, 2001, Final Rule and 
amended in this exclusion.

C. What Are the Terms of This Exclusion?

    The following summarizes the maximum allowable constituent 
concentrations (delisting levels) for BMW's waste. We calculated these 
delisting levels for each constituent that is part of BMW's current 
delisting based on the Delisting Risk Assessment Software (DRAS) EPA 
Composite Model for Leachate Migration with Transformation Products 
(EPACMTP) model, which grants BMW an exclusion from the lists of 
hazardous wastes in subpart D of 40 CFR part 261 for its petitioned 
waste when disposed in a Subtitle D landfill. BMW must meet all of the 
following delisting conditions in order for this exclusion to be valid: 
delisting levels in mg/l in the TCLP extract of the waste of 100.0 for 
Barium, 1.0 for Cadmium, 5.0 for Chromium, 33.6 for Cyanide, 5.0 for 
Lead, and 70.3 for Nickel.
    This amended exclusion applies to the waste described in the 
petition only if the requirements described above as well as in Table 1 
of Appendix IX to part 261 of Title 40 of the Code of Federal 
Regulations are satisfied. The maximum annual volume of the wastewater 
treatment sludge is 2850 cubic yards.

D. When Is the Final Amendment Effective?

    This rule is effective August 31, 2005. HSWA 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, rather 
than increases, the existing requirements for persons generating 
hazardous wastes. For these same reasons, this rule can become 
effective immediately (that is, upon publication in the Federal 
Register) under the Administrative Procedure Act, pursuant to 5 U.S.C. 
553(d).

E. How Does This Action Affect States?

    Because EPA is issuing today's exclusion under the Federal RCRA 
delisting program, only States subject to Federal RCRA delisting 
provisions would be directly 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 EPA's authorization to make their own delisting decisions. We 
describe these two situations below.
    We allow states to impose their own non-RCRA regulatory 
requirements that are more stringent than EPA's, under Section 3009 of 
RCRA. These more stringent requirements may include a provision that 
prohibits a Federally issued exclusion from taking effect in the State, 
or that prohibits a Federally issued exclusion from taking effect in 
the State until the State approves the exclusion through a separate 
State administrative action. Because a dual system (that is, both 
Federal and State programs) may regulate a petitioner's waste, we urge 
petitioners to contact the applicable State regulatory authorities or 
agencies to establish the status of their waste under that State's 
program.
    We have also authorized some States to administer a delisting 
program in place of the Federal program; that is, to make State 
delisting decisions. Therefore, this exclusion does not necessarily 
apply within those authorized States. If BMW transports the petitioned 
waste to, or manages the waste in, any State with delisting 
authorization, BMW must obtain delisting approval from that State 
before it can manage the waste as nonhazardous in that State.
    In order for this amendment to be effective in an authorized State, 
that State must adopt this amendment through its State administrative 
process.

II. Background

A. What Is a Delisting Petition?

    A delisting petition is a formal request from a generator to EPA or 
another agency with jurisdiction to exclude from the lists of hazardous 
waste regulated by RCRA, a waste that the generator believes should not 
be considered hazardous.

B. What Regulations Allow Hazardous Waste Generators To Delist Waste?

    Under 40 CFR 260.20 and 260.22, a generator may petition EPA to 
remove its waste from hazardous waste control by excluding it from the 
lists of hazardous wastes contained in 40 CFR 261.31, 261.32 and 
261.33. Specifically, 40 CFR 260.20 allows any person to

[[Page 51640]]

petition the Administrator to modify or revoke any provision of parts 
260 through 266, 268 and 273 of Title 40 of the Code of Federal 
Regulations. 40 CFR 260.22 provides generators the opportunity to 
petition the Administrator to exclude a waste on a ``generator-
specific'' basis from the hazardous waste lists. A generator can 
petition EPA for an amendment to an existing exclusion under these same 
provisions of the Code of Federal Regulations.

C. What Information Must the Generator Supply?

    A petitioner must provide sufficient information to allow EPA to 
determine that the waste to be excluded does not meet any of the 
criteria under which the waste was listed as a hazardous waste. In 
addition, the Administrator must determine that the waste is not 
hazardous for any other reason.

III. EPA's Evaluation of the Waste Data

A. What Waste Is the Subject of This Amendment?

    BMW in Greer, South Carolina, manufactures automobiles for domestic 
consumption and for shipment to foreign markets. The assembly plant 
operations include body welding, conversion coating, painting, final 
assembly, and shipment. The manufacturing process that causes F019 to 
be generated is conversion coating, when applied to automobile bodies 
that contain aluminum. Conversion coating takes place in the plant's 
paint shop and treats the metal surface of each automobile body before 
painting to provide resistance to corrosion and to prepare the metal 
surface for optimum paint adhesion. Wastewater from all plant 
operations is treated at BMW's wastewater pretreatment plant which is 
located in an area of the paint shop. The wastewater is treated to meet 
the requirements of BMW's wastewater pretreatment permit before 
discharging the water to the publicly owned treatment works (POTW). 
Treatment results in the formation of insoluble metal hydroxides and 
phosphates. Wastewater treatment sludge is generated when these metal 
hydroxides and phosphates are dewatered in a filter press. The sludge 
that exits from the filter press is classified as F019 when the 
automobile bodies contain aluminum, and the exit from the filter press 
will be the point of generation of F019. BMW was granted its current 
Federal delisting exclusion for this F019 wastewater treatment sludge 
at a maximum annual volume of 2,850 cubic yards on May 2, 2001 (66 FR 
21877).
    A full description of this waste and the Agency's evaluation of the 
original BMW's petition are contained in the ``Proposed Rule and 
Request for Comments'' published in the Federal Register on February 
12, 2001 (66 FR 9781). After evaluating public comment on the proposed 
rule, we published a final decision in the Federal Register on May 2, 
2001 (66 FR 21877), to exclude BMW's wastewater treatment sludge 
derived from the treatment of EPA Hazardous Waste No. F019 from the 
list of hazardous wastes found in 40 CFR 261.31. The hazardous 
constituents of concern for which F019 was listed are hexavalent 
chromium and cyanide (complexed). BMW petitioned the EPA to exclude its 
F019 waste because BMW does not use either of these constituents in the 
manufacturing process. Therefore, BMW did not believe that the waste 
meets the criteria of the listing. EPA's final decision to grant the 
delisting exclusion on May 2, 2001, was conditioned on the following 
delisting levels: (1) Delisting levels in mg/l in the TCLP extract of 
the waste of 100.0 for Barium, 1.0 for Cadmium, 5.0 for Chromium, 33.6 
for Cyanide, 5.0 for Lead, and 70.3 for Nickel; (2) the total 
concentration of cyanide (total, not amenable) in the waste, not the 
waste leachate, must not exceed 200 mg/kg; (3) the total 
concentrations, in mg/kg, of metals in the waste, not the waste 
leachate, must not exceed 2,000 for Barium, 500 for Cadmium, 1,000 for 
Chromium, 2,000 for Lead, and 20,000 for Nickel. If the waste exceeded 
any of the delisting limits, then the waste has to be managed as 
hazardous waste.

C. How Did EPA Evaluate This Petition?

    In support of its original petition, BMW submitted: (1) 
Descriptions of its manufacturing and wastewater treatment processes, 
the generation point of the petitioned waste, and the manufacturing 
steps that will contribute to its generation; (2) Material Safety Data 
Sheets (MSDSs) for materials used to manufacture automobiles and to 
treat wastewater; (3) the minimum and maximum annual amounts of 
wastewater treatment sludge generated from 1996 through 1999, and an 
estimate of the maximum annual amount expected to be generated in the 
future; (4) results of analysis for metals, cyanide, sulfide, fluoride, 
and volatile organic compounds in the currently generated waste at the 
BMW plants in Greer, South Carolina, and Dingolfing, Germany; (5) 
results of the analysis of leachate obtained by means of the Toxicity 
Characteristic Leaching Procedure ((TCLP), SW-846 Method 1311), from 
these wastes; (6) results of the determinations for the hazardous 
characteristics of ignitability, corrosivity, and reactivity, in these 
wastes; (7) results of determinations of dry weight percent, bulk 
density, and free liquids in these wastes; and (8) results of the MEP 
analysis of the currently generated waste at the plant in Greer, South 
Carolina.
    EPA reviewed the allowable total concentrations in the waste, as 
calculated by DRAS for the waste, to determine if eliminating the total 
concentration limits for the constituents of concern would be still 
protective to human health and the environment. The allowable total 
concentrations, according to the DRAS, were all at least 1,000 times 
greater than the actual maximum total concentrations found in the 
waste. Based on the DRAS results, EPA grants BMW's petition for 
amendment to eliminate all total concentration limits.

IV. Public Comments on the Proposed Amendment

A. Who Submitted Comments on the Proposed Rule?

    EPA received public comments on the proposed noticed published on 
November 26, 2004, from Alliance of Automobile Manufacturers; The 
Aluminum Association; BMW Manufacturing Co., LLC; Donald Humphrey; and 
EPA. All commenters were supportive of the proposal except Donald 
Humphrey.

B. Comments and Responses From EPA

    Comment: On October 30, 2002, (67 FR 66251), EPA's Office of Solid 
Waste proposed the Methods Innovation Rule (MIR) to remove from the 
regulations unnecessary requirements to use only SW-846 Methods other 
than those considered to be Method Defined Parameters (MDP). The Agency 
is no longer generally requiring the use of only SW-846 Methods for 
regulatory applications other than those involving MDPs. The general 
purpose of this rule is to allow more flexibility when conducting RCRA-
related sampling and analysis activities.
    Response: EPA has revised Table 1: (2) Verification Testing 
Requirements: in Appendix IX of this Final Rule with appropriate 
language.
    Comment: The Alliance of Automobile Manufacturers, the Aluminum 
Association, and BMW believe the F019 listing itself should be revised 
to exclude wastewater treatment sludges from automotive industry 
conversion coating on aluminum when hexavalent chromium and cyanides 
are not used in the process.

[[Page 51641]]

    Response: Today's final rule is site-specific and waste-specific; 
it applies only to BMW's plant in Greer, South Carolina, and only to 
the petitioned waste. EPA understands the commenters' concern, but it 
is outside the scope of this delisting.
    Comment: Donald Humphrey disagreed with granting this final rule, 
because he feels that BMW must abide by the rules of RCRA.
    Response: On January 16, 1981, as part of its final and interim 
final regulations implementing section 3001 of RCRA, EPA published an 
amended list of hazardous wastes from non-specific and specific 
sources. This list has been amended several times, and is published in 
40 CFR 261.31 and 261.32. These wastes are listed as hazardous because 
they exhibit one or more of the characteristics of hazardous wastes 
identified in Subpart C of part 261 (i.e., ignitability, corrosivity, 
reactivity, and toxicity) or meet the criteria for listing contained in 
section 261.11(a)(2) or (a)(3). Individual waste streams may vary, 
however, depending on raw materials, industrial processes, and other 
factors. Thus, while a waste that is described in these regulations 
generally is hazardous, a specific waste from an individual facility 
meeting the listing description may not be. For this reason, sections 
260.20 and 260.22 provide an exclusion procedure, allowing BMW to 
demonstrate that its F019 waste from its specific facility should not 
be regulated as a hazardous waste. BMW has complied with the 
requirements of sections 260.20 and 260.22, and therefore, is having 
its petition to amend an exclusion (or delisting) from the lists of 
hazardous waste granted.

V. Administrative Assessments

    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 particular facility, it is not subject to the regulatory 
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.), or to sections 202, 203, 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 
Indian tribal governments, as specified in Executive Order 13175 (65 FR 
67249, November 6, 2000). 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(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272) do not apply. This rule does 
not impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The 
Congressional Review Act, 5 U.S.C. 801 et seq. as added by the Small 
Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 804 exempts from section 801 the following types 
of rules (1) Rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties (5 U.S.C. 804(3)). EPA is not 
required to submit a rule report regarding today's action under section 
801 because this is a rule of particular applicability.

List of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and 
recordkeeping requirements.

    Dated: July 15, 2005.
Alan Farmer,
Acting Director, Waste Management Division.

0
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

0
1. The authority citation for part 261 continues to read as follows:

    Authority: 42 U.S.C 6905, 6912(a), 6921, 6922, 6924(y) and 6938.


0
2. In Table 1 of Appendix IX, Part 261 revise the entry for BMW 
Manufacturing Co., LLC to read as follows:

Appendix IX to Part 261--Wastes Excluded Under Sec. Sec.  260.20 and 
260.22

                               Table 1.--Wastes Excluded From Non-Specific Sources
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               Facility                            Address                          Waste description
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                                                  * * * * * * *
BMW Manufacturing Co., LLC...........  Greer, South Carolina..........  Wastewater treatment sludge (EPA
                                                                         Hazardous Waste No. F019) that BMW
                                                                         Manufacturing Corporation (BMW)
                                                                         generates by treating wastewater from
                                                                         automobile assembly plant located on
                                                                         Highway 101 South in Greer, South
                                                                         Carolina. This is a conditional
                                                                         exclusion for up to 2,850 cubic yards
                                                                         of waste (hereinafter referred to as
                                                                         ``BMW Sludge'') that will be generated
                                                                         each year and disposed in a Subtitle D
                                                                         landfill after August 31, 2005. With
                                                                         prior approval by the EPA, following a
                                                                         public comment period, BMW may also
                                                                         beneficially reuse the sludge. BMW must
                                                                         demonstrate that the following
                                                                         conditions are met for the exclusion to
                                                                         be valid.
                                                                        (1) Delisting Levels: All leachable
                                                                         concentrations for these metals and
                                                                         cyanide must not exceed the following
                                                                         levels (ppm): Barium-100; Cadmium-1;
                                                                         Chromium-5; Cyanide-33.6, Lead-5; and
                                                                         Nickel-70.3. These metal and cyanide
                                                                         concentrations must be measured in the
                                                                         waste leachate obtained by the method
                                                                         specified in 40 CFR 261.24, except that
                                                                         for cyanide, deionized water must be
                                                                         the leaching medium. Cyanide
                                                                         concentrations in waste or leachate
                                                                         must be measured by the method
                                                                         specified in 40 CFR 268.40, Note 7.

[[Page 51642]]

 
                                                                        (2) Annual Verification Testing
                                                                         Requirements: Sample collection and
                                                                         analyses, including quality control
                                                                         procedures, must be performed using
                                                                         appropriate methods. As applicable to
                                                                         the method-defined parameters of
                                                                         concern, analyses requiring the use of
                                                                         SW-846 methods incorporated by
                                                                         reference in 40 CFR 260.11 must be used
                                                                         without substitution. As applicable,
                                                                         the SW-846 methods might include
                                                                         Methods 0010, 0011, 0020, 0023A, 0030,
                                                                         0031, 0040, 0050, 0051, 0060, 0061,
                                                                         1010A, 1020B, 1110A, 1310B, 1311, 1312,
                                                                         1320, 1330A, 9010C, 9012B, 9040C,
                                                                         9045D, 9060A, 9070A, (uses EPA Method
                                                                         1664, Rev. A), 9071B, and 9095B.
                                                                         Methods must meet Performance Based
                                                                         Measurement System Criteria in which
                                                                         the Data Quality Objectives are to
                                                                         demonstrate that representative samples
                                                                         of the BMW Sludge meet the delisting
                                                                         levels in Condition (1). (A) Annual
                                                                         Verification Testing: BMW must
                                                                         implement an annual testing program to
                                                                         demonstrate that constituent
                                                                         concentrations measured in the TCLP
                                                                         extract do not exceed the delisting
                                                                         levels established in Condition (1).
                                                                        (3) Waste Holding and Handling: BMW must
                                                                         hold sludge containers utilized for
                                                                         verification sampling until composite
                                                                         sample results are obtained. If the
                                                                         levels of constituents measured in the
                                                                         composite samples of BMW Sludge do not
                                                                         exceed the levels set forth in
                                                                         Condition (1), then the BMW Sludge is
                                                                         non-hazardous and must be managed in
                                                                         accordance with all applicable solid
                                                                         waste regulations. If constituent
                                                                         levels in a composite sample exceed any
                                                                         of the delisting levels set forth in
                                                                         Condition (1), the batch of BMW Sludge
                                                                         generated during the time period
                                                                         corresponding to this sample must be
                                                                         managed and disposed of in accordance
                                                                         with Subtitle C of RCRA.
                                                                        (4) Changes in Operating Conditions: BMW
                                                                         must notify EPA in writing when
                                                                         significant changes in the
                                                                         manufacturing or wastewater treatment
                                                                         processes are implemented. EPA will
                                                                         determine whether these changes will
                                                                         result in additional constituents of
                                                                         concern. If so, EPA will notify BMW in
                                                                         writing that the BMW Sludge must be
                                                                         managed as hazardous waste F019 until
                                                                         BMW has demonstrated that the wastes
                                                                         meet the delisting levels set forth in
                                                                         Condition (1) and any levels
                                                                         established by EPA for the additional
                                                                         constituents of concern, and BMW has
                                                                         received written approval from EPA. If
                                                                         EPA determines that the changes do not
                                                                         result in additional constituents of
                                                                         concern, EPA will notify BMW, in
                                                                         writing, that BMW must verify that the
                                                                         BMW Sludge continues to meet Condition
                                                                         (1) delisting levels.
                                                                        (5) Data Retention: Records of
                                                                         analytical data from Condition (2) must
                                                                         be compiled, summarized, and maintained
                                                                         by BMW for a minimum of three years,
                                                                         and must be furnished upon request by
                                                                         EPA or the State of South Carolina, and
                                                                         made available for inspection. Failure
                                                                         to maintain the required records for
                                                                         the specified time will be considered
                                                                         by EPA, at its discretion, sufficient
                                                                         basis to revoke the exclusion to the
                                                                         extent directed by EPA. All data must
                                                                         be accompanied by a signed copy of the
                                                                         certification statement in 40 CFR
                                                                         260.22(i)(12).
                                                                        (6) Reopener Language: (A) If, at any
                                                                         time after disposal of the delisted
                                                                         waste, BMW possesses or is otherwise
                                                                         made aware of any environmental data
                                                                         (including but not limited to leachate
                                                                         data or groundwater monitoring data) or
                                                                         any other data relevant to the delisted
                                                                         waste indicating that any constituent
                                                                         identified in the delisting
                                                                         verification testing is at a level
                                                                         higher than the delisting level allowed
                                                                         by EPA in granting the petition, BMW
                                                                         must report the data, in writing, to
                                                                         EPA and South Carolina within 10 days
                                                                         of first possessing or being made aware
                                                                         of that data. (B) If the testing of the
                                                                         waste, as required by Condition (2)(A),
                                                                         does not meet the delisting
                                                                         requirements of Condition (1), BMW must
                                                                         report the data, in writing, to EPA and
                                                                         South Carolina within 10 days of first
                                                                         possessing or being made aware of that
                                                                         data. (C) Based on the information
                                                                         described in paragraphs (6)(A) or
                                                                         (6)(B) and any other information
                                                                         received from any source, EPA will make
                                                                         a preliminary determination as to
                                                                         whether the reported information
                                                                         requires that EPA take action to
                                                                         protect human health or the
                                                                         environment. Further action may include
                                                                         suspending or revoking the exclusion,
                                                                         or other appropriate response necessary
                                                                         to protect human health and the
                                                                         environment. (D) If EPA determines that
                                                                         the reported information does require
                                                                         Agency action, EPA will notify the
                                                                         facility in writing of the action
                                                                         believed necessary to protect human
                                                                         health and the environment. The notice
                                                                         shall include a statement of the
                                                                         proposed action and a statement
                                                                         providing BMW with an opportunity to
                                                                         present information as to why the
                                                                         proposed action is not necessary. BMW
                                                                         shall have 10 days from the date of
                                                                         EPA's notice to present such
                                                                         information. (E) Following the receipt
                                                                         of information from BMW, as described
                                                                         in paragraph (6)(D), or if no such
                                                                         information is received within 10 days,
                                                                         EPA will issue a final written
                                                                         determination describing the Agency
                                                                         actions that are necessary to protect
                                                                         human health or the environment, given
                                                                         the information received in accordance
                                                                         with paragraphs (6)(A) or (6)(B). Any
                                                                         required action described in EPA's
                                                                         determination shall become effective
                                                                         immediately, unless EPA provides
                                                                         otherwise.

[[Page 51643]]

 
                                                                        (7) Notification Requirements: BMW must
                                                                         provide a one-time written notification
                                                                         to any State Regulatory Agency in a
                                                                         State to which or through which the
                                                                         delisted waste described above will be
                                                                         transported, at least 60 days prior to
                                                                         the commencement of such activities.
                                                                         Failure to provide such a notification
                                                                         will result in a violation of the
                                                                         delisting conditions and a possible
                                                                         revocation of the decision to delist.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 05-17359 Filed 8-30-05; 8:45 am]
BILLING CODE 6560-50-P


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