54760 Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Proposed Rules 

Environment 

We have analyzed this proposed rule 

under Department of Homeland 

Security Management Directive 5100.1 

and Commandant Instruction 

M16475.lD, which guide the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have made a preliminary determination 

under the Instruction that this action is 

not likely to have a significant effect on 

the human environment. An 

environmental analysis checklist 

supporting this preliminary 

determination is available in the docket 

where indicated under ADDRESSES. We 

seek any comments or information that 

may lead to the discovery of a 

significant environmental impact from 

this proposed rule. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701; 50 U.S.C. 191, 195; 33 CFR 

1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L. 

107–295, 116 Stat. 2064; Department of 

Homeland Security Delegation No. 0170.1. 

2. Add § 165.778 to read as follows: 

§ 165.778 Security Zone; Port of 

Mayaguez, Puerto Rico. 

(a) Security zone. A moving and fixed 

security zone is established around all 

cruise ships entering, departing, 

mooring, or anchoring in the Port of 

Mayaguez, Puerto Rico. The regulated 

area includes all waters from surface to 

bottom within a 50-yard radius of the 

vessel. The zone is activated when a 

cruise ship on approach to the Port of 

Mayaguez enters within 1 nautical mile 

of the Bahia de Mayaguez Range Front 

Light located in position 18°13′12′′ N, 

067°10′46′′ W. The zone is deactivated 

when a cruise ship departs the Port of 

Mayaguez and is no longer within 1 

nautical mile of the Bahia de Mayaguez 

Range Front Light. 

(b) Definitions. As used in this 

section: 

Cruise ship means a passenger vessel 

greater than 100 feet in length that is 

authorized to carry more than 150 

passengers for hire, except for a ferry. 

Designated representative means 

Coast Guard Patrol Commanders 

including Coast Guard coxswains, petty 

officers and other officers operating 

Coast Guard vessels and Federal, State, 

and local officers designated by or 

assisting the COTP San Juan in the 

enforcement of the safety zone. 

Vessel means every description of 

watercraft or other artificial contrivance 

used, or capable of being used, as a 

means of transportation on water, 

except U.S. Coast Guard or U.S. naval 

vessels and servicing pilot and tug 

boats. 

(c) Regulations. (1) No person or 

vessel may enter into the security zone 

under this section unless authorized by 

the Captain of the Port San Juan. 

(2) Vessels seeking to enter a security 

zone established in this section, may 

contact the COTP on VHF channel 16 or 

by telephone at (787) 289–2041 to 

request permission. 

(3) All persons and vessels granted 

permission to enter the security zone 

must comply with the orders of the 

COTP and designated on-scene U.S. 

Coast Guard patrol personnel. On-scene 

U.S. Coast Guard patrol personnel 

include commissioned, warrant, and 

petty officers of the U.S. Coast Guard. 

Dated: September 2, 2008. 

E. Pino, 

Captain, U.S. Coast Guard, Captain of the 

Port San Juan. 

[FR Doc. E8–22242 Filed 9–22–08; 8:45 am] 

BILLING CODE 4910–15–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 261 

[EPA–R06–RCRA–2008–0456; SW FRL– 

8713–2] 

Hazardous Waste Management 

System; Identification and Listing of 

Hazardous Waste; Proposed Exclusion 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule and request for 

comment. 

SUMMARY: EPA is proposing to grant a 

petition submitted by BAE Systems, Inc. 

(BAE) to exclude (or delist) a certain 

solid waste generated by its Sealy, 

Texas, facility from the lists of 

hazardous wastes. EPA used the 

Delisting Risk Assessment Software 

(DRAS) Version 3.0 in the evaluation of 

the impact of the petitioned waste on 

human health and the environment. 

DATES: We will accept comments until 

October 23, 2008. We will stamp 

comments received after the close of the 

comment period as late. These late 

comments may not be considered in 

formulating a final decision. Your 

requests for a hearing must reach EPA 

by October 8, 2008. The request must 

contain the information prescribed in 40 

CFR 260.20(d) (hereinafter all CFR cites 

refer to 40 CFR unless otherwise stated). 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

RCRA–2008–0456 by one of the 

following methods: 

1. Federal eRulemaking Portal: 

http://www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. E-mail: jacques.wendy@epa.gov. 

3. Mail: Wendy Jacques, 

Environmental Protection Agency, 

Multimedia Planning and Permitting 

Division, RCRA Branch, Mail Code: 

6PD–F, 1445 Ross Avenue, Dallas, TX 

75202. 

4. Hand Delivery or Courier: Deliver 

your comments to: Wendy Jacques, 

Environmental Protection Agency, 

Multimedia Planning and Permitting 

Division, RCRA Branch, Mail Code: 

6PD–F, 1445 Ross Avenue, Dallas, TX 

75202. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–RCRA–2008– 

0456. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 


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Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Proposed Rules 54761 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the 

electronic docket are listed in the 

http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in http:// 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

RCRA Branch, 1445 Ross Avenue, 

Dallas, TX 75202. The hard copy RCRA 

regulatory docket for this proposed rule, 

EPA–R06–RCRA–2008–0456, is 

available for viewing from 8 a.m. to 5 

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. EPA requests that you contact 

the person listed in the FOR FURTHER

INFORMATION CONTACT section to 

schedule your inspection. The 

interested persons wanting to examine 

these documents should make an 

appointment with the office at least 24 

hours in advance. 

FOR FURTHER INFORMATION CONTACT: For 

further technical information 

concerning this document or for 

appointments to view the docket or the 

BAE facility petition, contact Wendy 

Jacques, Environmental Protection 

Agency, Multimedia Planning and 

Permitting Division, RCRA Branch, Mail 

Code: 6PD–C, 1445 Ross Avenue, Dallas, 

TX 75202, by calling 214–665–7395 or 

by e-mail at jacques.wendy@epa.gov. 

SUPPLEMENTARY INFORMATION: BAE 

submitted a petition under 40 CFR 

260.20 and 260.22(a). Section 260.20 

allows any person to petition the 

Administrator to modify or revoke any 

provision of §§ 260 through 266, 268 

and 273. Section 260.22(a) specifically 

provides generators the opportunity to 

petition the Administrator to exclude a 

waste on a ‘‘generator specific’’ basis 

from the hazardous waste lists. 

The Agency bases its proposed 

decision to grant the petition on an 

evaluation of waste-specific information 

provided by the petitioner. This 

proposed decision, if finalized, would 

conditionally exclude the petitioned 

waste from the requirements of 

hazardous waste regulations under the 

Resource Conservation and Recovery 

Act (RCRA). 

If finalized, we would conclude the 

petitioned waste from this facility is 

non-hazardous with respect to the 

original listing criteria and that the 

waste process used will substantially 

reduce the likelihood of migration of 

hazardous constituents from this waste. 

We would also conclude that the 

processes minimize short-term and 

long-term threats from the petitioned 

waste to human health and the 

environment. The information in this 

section is organized as follows: 

I. Overview Information 

A. What action is EPA proposing? 

B. Why is EPA proposing to approve this 

delisting? 

C. How will BAE manage the waste, if it 

is delisted? 

D. When would the proposed delisting 

exclusion be finalized? 

E. How would this action affect states? 

II. Background 

A. What is the history of the delisting 

program? 

B. What is a delisting petition, and what 

does it require of a petitioner? 

C. What factors must EPA consider in 

deciding whether to grant a delisting 

petition? 

III. EPA’s Evaluation of the Waste 

Information and Data 

A. What waste did BAE petition EPA to 

delist? 

B. Who is BAE and what process do they 

use to generate the petitioned waste? 

C. What information did BAE submit to 

support this petition? 

D. What were the results of BAE’s analysis? 

E. How did EPA evaluate the risk of 

delisting this waste? 

F. What changes have been made to the 

DRAS model? 

G. What did EPA conclude about BAE’s 

analysis? 

H. What other factors did EPA consider in 

its evaluation? 

I. What is EPA’s evaluation of this delisting 

petition? 

IV. Next Steps 

A. With what conditions must the 

petitioner comply? 

B. What happens if BAE violates the terms 

and conditions? 

V. Public Comments 

A. How may I as an interested party submit 

comments? 

B. How may I review the docket or obtain 

copies of the proposed exclusion? 

VI. Statutory and Executive Order Reviews 

I. Overview Information 

A. What action is EPA proposing? 

EPA is proposing to grant the 

delisting petition submitted by BAE to 

have its waste filter cake (F019 listed 

hazardous waste) excluded, or delisted, 

from the definition of a hazardous 

waste. 

B. Why is EPA proposing to approve this 

delisting? 

BAE’s petition requests a delisting for 

the waste filter cake derived from the 

treatment of hazardous waste water 

listed as F019. BAE does not believe 

that the petitioned waste meets the 

criteria for which EPA listed it. BAE 

also believes no additional constituents 

or factors could cause the waste to be 

hazardous. EPA’s review of this petition 

included consideration of the original 

listing criteria, and the additional 

factors required by the Hazardous and 

Solid Waste Amendments of 1984 

(HSWA). See section 3001(f) of RCRA, 

42 U.S.C. 6921(f), and 40 CFR 

260.22(d)(1)–(4). In making the initial 

delisting determination, EPA evaluated 

the petitioned waste against the listing 

criteria and factors cited in 

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

review, EPA agrees with the petitioner 

that the waste is non-hazardous with 

respect to the original listing criteria. If 

EPA had found, based on this review, 

that the waste remained hazardous 

based on the factors for which the waste 

was originally listed, EPA would have 

proposed to deny the petition. EPA 

evaluated the waste with respect to 

other factors or criteria to assess 

whether there is a reasonable basis to 

believe that such additional factors 

could cause the waste to be hazardous. 

EPA considered whether the waste is 

acutely toxic, the concentration of the 

constituents in the waste, their tendency 

to migrate and to bioaccumulate, their 

persistence in the environment once 

released from the waste, plausible and 

specific types of management of the 

petitioned waste, the quantities of waste 

generated, and waste variability. EPA 

believes that the petitioned waste does 

not meet the listing criteria and thus 

should not be a listed waste. EPA’s 

proposed decision to delist waste from 

the facility is based on the information 

submitted in support of this rule, 

including descriptions of the waste and 

analytical data from the BAE, Sealy, 

Texas facility. 

C. How will BAE manage the waste, if 

it is delisted? 

BAE will dispose of the waste filter 

cake in a Subtitle D landfill. The 

Subtitle D landfill should be permitted 

or approved by a State regulatory 

agency. 

D. When would the proposed delisting 

exclusion be finalized? 

RCRA section 3001(f) specifically 

requires EPA to provide notice and an 

opportunity for comment before 

granting or denying a final exclusion. 


jlentini on PROD1PC65 with PROPOSALS
54762 Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Proposed Rules 

Thus, EPA will not grant the exclusion 

unless and until it addresses all timely 

public comments (including those at 

public hearings, if any) on this proposal. 

RCRA section 3010(b)(1), at 42 USCA 

6930(b)(1), allows rules to become 

effective in less than six months after 

EPA addresses public comments when 

the regulated facility does not need the 

six-month period to come into 

compliance. That is the case here, 

because this rule, if finalized, would 

reduce the existing requirements for 

persons generating hazardous wastes. 

EPA believes that this exclusion 

should be effective immediately upon 

final publication because a six-month 

deadline is not necessary to achieve the 

purpose of section 3010(b), and a later 

effective date would impose 

unnecessary hardship and expense on 

this petitioner. These reasons also 

provide good cause for making this rule 

effective immediately, upon final 

publication, under the Administrative 

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

E. How would this action affect the 

states? 

Because EPA is issuing this exclusion 

under the Federal RCRA delisting 

program, only states subject to Federal 

RCRA delisting provisions would be 

affected. This would exclude states 

which have received authorization from 

EPA to make their own delisting 

decisions (e.g., Oklahoma, Louisiana, 

etc.). 

EPA allows the states to impose their 

own non-RCRA regulatory requirements 

that are more stringent than EPA’s, 

under section 3009 of RCRA, 42 U.S.C. 

6929. These more stringent 

requirements may include a provision 

that prohibits a Federally issued 

exclusion from taking effect in the state. 

Because a dual system (that is, both 

Federal (RCRA) and state (non-RCRA) 

programs) may regulate a petitioner’s 

waste, EPA urges petitioners to contact 

the state regulatory authority to 

establish the status of their wastes under 

the state law. Delisting petitions 

approved by EPA Administrator or his 

designee under § 260.22 are effective in 

the State of Texas only after the final 

rule has been published in the Federal 

Register. 

II. Background 

A. What is the history of the delisting 

program? 

EPA published an amended list of 

hazardous wastes from nonspecific and 

specific sources on January 16, 1981, as 

part of its final and interim final 

regulations implementing section 3001 

of RCRA. EPA has amended this list 

several times and published it in 

§§ 261.31 and 261.32. EPA lists these 

wastes as hazardous because: (1) They 

typically and frequently exhibit one or 

more of the characteristics of hazardous 

wastes identified in subpart C of part 

261 (that is, ignitability, corrosivity, 

reactivity, and toxicity) or (2) they meet 

the criteria for listing contained in 

§§ 261.11(a)(2) or (a)(3). 

Individual waste streams may vary, 

however, depending on raw materials, 

industrial processes, and other factors. 

Thus, while a waste described in these 

regulations generally is hazardous, a 

specific waste from an individual 

facility meeting the listing description 

may not be hazardous. 

For this reason, §§ 260.20 and 260.22 

provide an exclusion procedure, called 

delisting, which allows persons to prove 

that EPA should not regulate a specific 

waste from a particular generating 

facility as a hazardous waste. 

B. What is a delisting petition, and what 

does it require of a petitioner? 

A delisting petition is a request from 

a facility to EPA or an authorized State 

to exclude wastes from the list of 

hazardous wastes. The facility petitions 

EPA because it does not believe the 

wastes should be hazardous under 

RCRA regulations. 

In a delisting petition, the petitioner 

must show that wastes generated at a 

particular facility do not meet any of the 

criteria for which the waste was listed. 

The criteria for which EPA lists a waste 

are in part 261 and further explained in 

the background documents for the listed 

waste. 

In addition, under § 260.22, a 

petitioner must prove that the waste 

does not exhibit any of the hazardous 

waste characteristics and present 

sufficient information for EPA to decide 

whether factors other than those for 

which the waste was listed warrant 

retaining it as a hazardous waste. See 

part 261 and the background documents 

for the listed waste. 

Generators remain obligated under 

RCRA to confirm whether their waste 

remains non-hazardous based on the 

hazardous waste characteristics even if 

EPA has ‘‘delisted’’ the waste. 

C. What factors must EPA consider in 

deciding whether to grant a delisting 

petition? 

Besides considering the criteria in 

§ 260.22(a) and section 3001(f) of RCRA, 

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

documents for the listed wastes, EPA 

must consider any factors (including 

additional constituents) other than those 

for which EPA listed the waste, if a 

reasonable basis exists to determine that 

these additional factors could cause the 

waste to be hazardous. 

EPA must also consider as hazardous 

waste mixtures containing listed 

hazardous wastes and wastes derived 

from treating, storing, or disposing of 

listed hazardous waste. See 

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

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

are also eligible for exclusion and 

remain hazardous wastes until 

excluded. See 66 FR 27266 (May 16, 

2001). 

III. EPA’s Evaluation of the Waste 

Information and Data 

A. What waste did BAE petition EPA to 

delist? 

BAE petitioned EPA on December 23, 

2005, to exclude from the lists of 

hazardous waste contained in § 261.31, 

the waste filter cake from its waste 

water treatment plant. 

The waste filter cake is generated 

from the BAE facility located in Sealy, 

Texas. The waste filter cake is listed 

under EPA Hazardous Waste No. F019, 

because it is derived from the chemical 

conversion coating of aluminum except 

from zirconium phosphating in 

aluminum can washing when such 

phosphating is an exclusive conversion 

coating process. Specifically, in its 

petition, BAE requested that EPA grant 

exclusion for 1,200 cubic yards per 

calendar year of F019 waste resulting 

from the treatment of waste waters from 

the manufacturing processes at its 

facility. 

B. Who is BAE and what process do they 

use to generate the petitioned waste? 

BAE manufactures trucks for the U.S. 

Army. Manufacturing consists of 

machining, cutting, welding, metal prep 

and priming, painting, assembly and 

final prep. Wastewater is treated and 

discharged to waters of the United 

States through permitted outfalls. 

BAE’s preprocess steps include 

fabrication and surface preparation and 

coating. The waste stream is a byproduct of one main manufacturing 

process consisting of five process lines; 

Steel E-Coat (E-Coat 1 and E-Coat 2), 

Small Parts Steel E-Coat, Long-Term 

Armored Survivability (LTAS) and 

Small Parts Aluminum E-Coat. The 

waste generated is a solid by-product of 

BAE’s wastewater treatment system. 

BAE intends to dispose of the delisted 

waste filter cake at a Subtitle D Landfill. 

Treatment of the waste waters, which 

result from the manufacturing process 

generates the waste filter cake that is 

classified as F019 listed hazardous 

wastes pursuant to § 261.31. The 40 CFR 


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Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Proposed Rules 54763 

part 261, Appendix VII hazardous 

constituents, which are the basis for 

listing F019 hazardous wastes are: 

hexavalent chromium and cyanide. 

C. What information did BAE submit to 

support this petition? 

To support its petition, BAE 

submitted: 

(1) Analytical results of the toxicity 

characteristic leaching procedure and 

total constituent analysis for volatile 

and semivolatile organics, pesticides, 

herbicides, dioxins/furans, PCBs and 

metals for seven filter cake samples; 

(2) Analytical results from multiple 

pH leaching of metals; and 

(3) Description of the waste water 

treatment process. 

D. What were the results of BAE’s 

analysis? 

EPA believes that the descriptions of 

BAE’s waste, and the analytical data 

submitted in support of the petition 

show that the filter cake is nonhazardous. Analytical data from BAE’s 

filter cake samples were used in the 

DRAS program. The data summaries for 

detected constituents are presented in 

Table 1. EPA has reviewed the sampling 

procedures used by BAE and has 

determined that they satisfy EPA’s 

criteria for collecting representative 

samples of the variations in constituent 

concentrations in the filter cake. The 

data submitted in support of the petition 

show that constituents in BAE’s wastes 

are presently below health-based risk 

levels used in the delisting decisionmaking. EPA believes that BAE has 

successfully demonstrated that the filter 

cake is non-hazardous. 

TABLE 1—ANALYTICAL RESULTS AND MAXIMUM ALLOWABLE DELISTING CONCENTRATIONS OF THE FILTER CAKE 1

Constituent Maximum total 

(mg/kg) 

Maximum 

TCLP 

(mg/l) 

Maximum allowable TCLP 

delisting level 

(mg/L) 

Acetone ........................................................................................................................................ 3.8 <.50 3211 

Arsenic ......................................................................................................................................... 2.69 .0108 .052 

Barium .......................................................................................................................................... 47.5 .0148 100 

Bis(2-ethylhexyl)phthalate ............................................................................................................ 2.3 .010 103 

Cadmium ...................................................................................................................................... 2.93 .0500 .561 

Chloroform ................................................................................................................................... .013 <.010 .4924 

Chromium .................................................................................................................................... 2740 1.82 5.00 

Copper ......................................................................................................................................... 99.2 .371 149 

Cyanide ........................................................................................................................................ 2.06 .065 19 

Furans .......................................................................................................................................... .00000893 .0000000536 3.57 

Hexavalent Chromium ................................................................................................................. <2.00 .0253 5 

Lead ............................................................................................................................................. 21.2 <.0500 3.57 

Lindane ........................................................................................................................................ <.0017 .00011 .4 

Methyl Ethyl Ketone ..................................................................................................................... .034 <.20 200 

Nickel ........................................................................................................................................... 6860 .0235 82.2 

Selenium ...................................................................................................................................... <.806 .144 1 

2,4,5,-TP (Silvex) ......................................................................................................................... .77 .0061 1 

2,4-D ............................................................................................................................................ .0050 .0078 6.65 

Tin ................................................................................................................................................ 319 .162 9001 

Tetrachlorodibenzo-p-dioxins ....................................................................................................... .0000716 .0000000134 249 

Tetrachloroethylene ..................................................................................................................... .020 <.10 .125685 

Zinc .............................................................................................................................................. 3190 .81 1240 

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

specific levels found in one sample. 

< Denotes that the constituent was below the detection limit. 

E. How did EPA evaluate the risk of 

delisting this waste? 

The worst case scenario for 

management of the sludge was modeled 

for disposal in a landfill. EPA used such 

information gathered to identify 

plausible exposure routes (i.e., ground 

water, surface water, soil, air) for 

hazardous constituents present in the 

sludge. EPA determined that disposal in 

a Subtitle D landfill is the most 

reasonable, worst-case disposal scenario 

for the wastes. In assessing potential 

risks to ground water, EPA used the 

maximum estimated waste volumes and 

the maximum reported extract 

concentrations as inputs to the DRAS 

program to estimate the constituent 

concentrations in the ground water at a 

hypothetical receptor well down 

gradient from the disposal site. Using 

the risk level (carcinogenic risk of 

10¥5 and non-cancer hazard index of 

0.1), the DRAS program can backcalculate the acceptable receptor well 

concentrations (referred to as 

compliance-point concentrations) using 

standard risk assessment algorithms and 

Agency health-based numbers. Using 

the maximum compliance-point 

concentrations and EPA Composite 

Model for Leachate Migration with 

Transformation Products (EPACMTP) 

fate and transport modeling factors, the 

DRAS further back-calculates the 

maximum permissible waste constituent 

concentrations not expected to exceed 

the compliance-point concentrations in 

ground water. 

EPA believes that the EPACMTP fate 

and transport model represents a 

reasonable worst-case scenario for 

possible ground water contamination 

resulting from disposal of the petitioned 

waste in a landfill, and that a reasonable 

worst-case scenario is appropriate when 

evaluating whether a waste should be 

relieved of the protective management 

constraints of RCRA Subtitle C. The use 

of some reasonable worst-case scenarios 

resulted in conservative values for the 

compliance-point concentrations and 

ensured that the waste, once removed 

from hazardous waste regulation, will 

not pose a significant threat to human 

health and/or the environment. The 

DRAS also uses the maximum estimated 

waste volumes and the maximum 

reported total concentrations to predict 

possible risks associated with releases of 

waste constituents through surface 

pathways (e.g., volatilization or windblown particulate from the landfill). As 

in the above ground water analyses, the 

DRAS uses the risk level, the healthVerDate Aug<31>2005 16:39 Sep 22, 2008 Jkt 214001 PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 E:\FR\FM\23SEP1.SGM 23SEP1

jlentini on PROD1PC65 with PROPOSALS
54764 Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Proposed Rules 

based data and standard risk assessment 

and exposure algorithms to predict 

maximum compliance-point 

concentrations of waste constituents at 

a hypothetical point of exposure. Using 

fate and transport equations, the DRAS 

uses the maximum compliance-point 

concentrations and back-calculates the 

maximum allowable waste constituent 

concentrations (or ‘‘delisting levels’’). 

In most cases, because a delisted 

waste is no longer subject to hazardous 

waste control, EPA is generally unable 

to predict, and does not presently 

control, how a petitioner will manage a 

waste after delisting. Therefore, EPA 

currently believes that it is 

inappropriate to consider extensive sitespecific factors when applying the fate 

and transport model. EPA does control 

the type of unit where the waste is 

disposed. 

EPA also considers the applicability 

of ground water monitoring data during 

the evaluation of delisting petitions. In 

this case, the facilities have never 

directly disposed of this material in a 

solid waste landfill, so no representative 

data exists. Therefore, EPA has 

determined that it would be 

unnecessary to request ground water 

monitoring data. 

EPA believes that the descriptions of 

the wastes and analytical 

characterization which illustrate the 

presence of toxic constituents at lower 

concentrations in these waste streams 

provide a reasonable basis to conclude 

that the likelihood of migration of 

hazardous constituents from the 

petitioned waste will be substantially 

reduced so that short-term and longterm threats to human health and the 

environment are minimized. 

The DRAS results, which calculated 

the maximum allowable concentration 

of chemical constituents of the filter 

cake are presented in Table 1. Based on 

the comparison of the DRAS results and 

maximum TCLP concentrations found 

in Table 1, the petitioned waste should 

be delisted because no constituents of 

concern are likely to be present or 

formed as reaction products or byproducts in BAE’s waste. 

F. What changes have been made to the 

DRAS model? 

Since 2004, U.S. EPA has been 

preparing an update of the Delisting 

Risk Assessment Software (DRAS) 

Version 2.0. The updates will be 

released as DRAS version 3.0. The 

update addresses a number of issues 

with version 2 and improved the fate 

and transport modeling. 

To estimate the downgradient 

concentrations of waste leachate 

constituents released into groundwater, 

the DRAS utilizes conservative dilutionattenuation factors (DAFs) taken from 

Monte-Carlo applications of U.S. EPA’s 

Composite Model for Leachate 

Migration with Transformation Products 

(CMTP). DRAS 3.0 includes all new 

DAFs from new CMTP modeling runs. 

The new modeling takes advantage of: 

updated saturated flow and transport 

modules; a new surface impoundment 

module and database; model corrections 

for unrealistic scenarios (like water 

tables modeled above the ground 

surface); new isotherms for metals; and 

a revised recharge and infiltration 

database. As a result, many of the DAFs 

used in previous versions of DRAS have 

changed. Further affecting the 

groundwater calculation, the 

relationships for determining scaling 

factors used to scale the DAFs to 

account for very small waste streams 

have been updated to reflect the new 

database information on landfills and 

surface impoundments and were also 

corrected for a metric conversion of 

cubic meters to cubic yards. The new 

scaling factors are generally higher than 

those of previous versions of DRAS, 

resulting in higher estimated dilution 

and attenuation at lower waste volumes 

for both landfills and surface 

impoundments. 

The new metals DAFs, based on 

MINTEQA2 isotherms, can vary as a 

function of the landfill leachate 

concentration. This means that the 

effective DAF (including a scaling factor 

adjustment, if necessary) for an input 

concentration may differ significantly 

with the effective DAF that corresponds 

to the allowable leachate concentration. 

DRAS 3.0 now displays the DAFs in 

both the forward calculated risk tables 

and the tables of maximum allowable 

concentrations so that the difference is 

evident to the user. The isotherms that 

vary by leachate concentration are 

represented in DRAS by a look-up table 

with leachate concentrations paired 

with DAFs. In the event that an actual 

concentration input to DRAS lies 

between two values in the table, or an 

allowable receptor concentration lies 

between two calculated receptor 

concentrations from the table, DRAS 3.0 

will linearly and proportionally 

extrapolate between the two values to 

determine the corresponding exposure 

or allowable leachate concentration. 

EPA changed the calculation for 

particle emissions caused by vehicles 

driving over the waste at the landfill to 

provide a more realistic estimate. The 

estimate depends upon the number of 

trips per day landfill vehicles make back 

and forth over the waste. In previous 

versions of DRAS, this value was 

conservatively set at 100 trips per day, 

corresponding with an extremely high 

annual waste volume. In DRAS 3.0, a 

minimum number of trips per day was 

conservatively assumed from the 

Subtitle D landfill survey (7.4 trips per 

day at the 95th percentile of values 

reported). The number of trips per day 

specific to the actual waste volume is 

then added to the minimum to reflect 

the impact of very large waste streams. 

This will considerably reduce the 

particle emission estimate for wastes 

generated at all but the largest annual 

volumes. 

EPA added a conversion from English 

to metric tons to the calculation of 

particle emissions from waste 

unloading, resulting in a decrease of 

roughly 10% over previous versions of 

DRAS. We also made a unit-conversion 

factor correction to part of the airvolatile pathway which will reduce the 

impact to the receptor. 

An error in the back-calculation for 

fish ingestion pathway was corrected to 

reflect the difference between freely 

dissolved and total water column waste 

constituent concentrations. 

For the estimation of risk and hazard, 

we made a number of updates to the 

forward and back calculations. Previous 

versions of DRAS assumed that only 

12.5% of particles are absorbed by the 

receptor’s respiratory system. This is no 

longer necessary as toxicity reference 

values for inhalation currently 

recommended by U.S. EPA relate risk or 

hazard directly to exposure 

concentration. DRAS 3.0 does not 

include the 12.5% reduction. This 

change significantly increases estimated 

risks due to particle inhalation and 

lowers corresponding allowable 

concentrations. 

DRAS Version 3.0 has a reformulated 

back calculation of the allowable 

leachate concentrations from exposure 

due to contaminants volatilized during 

household water use to match the 

forward calculation of risk. In previous 

versions of DRAS, the forward 

calculation summed the risks from 

exposure to all three evaluated 

household compartments (the shower, 

the bathroom, and the whole house) 

while the back calculation based the 

maximum allowable level on the single 

most conservative compartment. The 

DRAS 3.0 maximum allowable leachate 

concentrations are now based on the 

combined impact of all three 

compartments. The house exposure was 

also expanded to a 900 minute (15 hour) 

daily exposure to reflect non-working 

residents who have an overall 16 hour 

in-house exposure (the other 1 hour is 

spent in the shower and bathroom). 

EPA resolved the inconsistencies with 

the way DRAS chooses limiting 


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pathways for specific waste constituents 

in DRAS 3.0. 

EPA checked all toxicity reference 

values in DRAS and updated where 

necessary. Approximately 180 changes 

were made to the toxicity reference 

values in DRAS based on data in IRIS, 

PPRTV, HEAST, NCEA, CalEPA and 

other sources. Some route-to-route 

extrapolations of oral toxicity data to 

inhalation exposure have been returned 

to DRAS 3.0 is consistent with Agency 

policy. See the Delisting Technical 

Support Document for full accounting of 

this methodology. The same reference 

also includes discussions of toxicity 

reference choices where the multiple 

values were available or where the 

toxicity reference values were specific 

to particular species of constituents. 

The DRAS results, which calculated 

the maximum allowable concentration 

of chemical constituents in the filter 

cake are presented in Table 1. Based on 

the comparison of the DRAS results and 

maximum TCLP concentrations found 

in Table 1, the petitioned waste should 

be delisted because no constituents of 

concern are likely to be present or 

formed as reaction products or byproducts in BAE’s waste. 

G. What did EPA conclude about BAE’s 

analysis? 

EPA concluded, after reviewing BAE’s 

processes that no other hazardous 

constituents of concern, other than 

those for which BAE tested, are likely to 

be present or formed as reaction 

products or by-products in BAE’s 

wastes. In addition, on the basis of 

explanations and analytical data 

provided by BAE, pursuant to § 260.22, 

EPA concludes that the petitioned 

waste, filter cake, does not exhibit any 

of the characteristics of ignitability, 

corrosivity, reactivity, or toxicity. See 

§§ 261.21, 261.22, 261.23, and 261.24, 

respectively. 

H. What other factors did EPA consider 

in its evaluation? 

During the evaluation of this petition, 

in addition to the potential impacts to 

the ground water, EPA also considered 

the potential impact of the petitioned 

waste via non-ground water exposure 

routes (i.e., air emissions and surface 

runoff) for the filter cake. With regard to 

airborne dispersion in particular, EPA 

believes that exposure to airborne 

contaminants from the petitioned waste 

is unlikely. No appreciable air releases 

are likely from the filter cake under any 

likely disposal conditions. EPA 

evaluated the potential hazards 

resulting from the unlikely scenario of 

airborne exposure to hazardous 

constituents released from the waste 

water in an open landfill. The results of 

this worst-case analysis indicated that 

there is no substantial present or 

potential hazard to human health and 

the environment from airborne exposure 

to constituents from the filter cake. 

I. What is EPA’s evaluation of this 

delisting petition? 

The descriptions by BAE of the 

hazardous waste process and analytical 

characterization, with the proposed 

verification testing requirements (as 

discussed later in this notice), provide 

a reasonable basis for EPA to grant the 

petition. The data submitted in support 

of the petition show that constituents in 

the waste are below the maximum 

allowable concentrations (See Table 1). 

EPA believes that the filter cake 

generated by BAE contains hazardous 

constituents at levels which will present 

minimal short-term and long-term 

threats from the petitioned waste to 

human health and the environment. 

Thus, EPA believes that it should 

grant to BAE an exclusion from the list 

of hazardous wastes for the filter cake. 

EPA believes that the data submitted in 

support of the petition show the BAE’s 

filter cake to be non-hazardous. 

EPA has reviewed the sampling 

procedures used by BAE and has 

determined they satisfy EPA’s criteria 

for collecting representative samples of 

variable constituent concentrations in 

the filter cake. The data submitted in 

support of the petition show that 

constituents in BAE’s wastes are 

presently below the compliance-point 

concentrations used in the delisting 

decision-making process and would not 

pose a substantial hazard to the 

environment and the public. EPA 

believes that BAE has successfully 

demonstrated that the filter cake is nonhazardous. 

EPA, therefore, proposes to grant an 

exclusion to BAE for the filter cake 

described in its December 2005 petition. 

EPA’s decision to exclude this waste is 

based on analysis performed on samples 

taken of the filter cake. 

If EPA finalizes the proposed rule, 

EPA will no longer regulate 1,200 cubic 

yards/year of filter cake from BAE’s 

Sealy facility under parts 262 through 

268 and the permitting standards of part 

270. 

IV. Next Steps 

A. With what conditions must the 

petitioner comply? 

The petitioner, BAE, must comply 

with the requirements in 40 CFR part 

261, Appendix IX, Table 2 as amended 

by this notice. The text below gives the 

rationale and details of those 

requirements. 

(1) Delisting Levels 

This paragraph provides the levels of 

constituent concentrations for which 

BAE must test in the filter cake, below 

which these wastes would be 

considered non-hazardous. 

EPA selected the set of inorganic and 

organic constituents specified in 

paragraph (1) and listed in 40 CFR part 

261, Appendix IX, Table 2, based on 

information in the petition. EPA 

compiled the inorganic and organic 

constituents list from descriptions of the 

manufacturing process used by BAE, 

previous test data provided for the 

waste, and the respective health-based 

levels used in delisting decisionmaking. These delisting levels 

correspond to the allowable levels 

measured in the leachable 

concentrations of the filter cake. 

(2) Waste Holding and Handling 

Waste classification as non-hazardous 

cannot begin until compliance with the 

limits set in paragraph (1) has occurred 

for two consecutive quarterly sampling 

events. For example, if BAE is issued a 

final exclusion in August, the first 

quarter samples are due in November 

and the second quarter samples are due 

in February. If EPA deems that both the 

first and second quarter samples (a total 

of four) meet all the delisting limits, 

classification of the waste as nonhazardous can begin in March. If 

constituent levels in any sample taken 

by BAE exceed any of the delisting 

levels set in paragraph (1), BAE must: 

(i) notify EPA in accordance with 

paragraph (6), and; (ii) manage and 

dispose of the filter cake as hazardous 

waste generated under Subtitle C of 

RCRA. 

(3) Verification Testing Requirements 

BAE must complete a verification 

testing program on the filter cake to 

assure that the wastes do not exceed the 

maximum levels specified in paragraph 

(1). If EPA determines that the data 

collected under this paragraph do not 

support the data provided in the 

petition, the exclusion will not cover 

the tested waste. This verification 

program operates on two levels. 

The first part of the quarterly 

verification testing program consists of 

testing a batch of filter cake for specified 

indicator parameters as described in 

paragraph (1). Each quarterly sampling 

event will consist of at least two 

samples of the filter cake. Levels of 

constituents measured in the samples of 

the filter cake that do not exceed the 

levels set forth in paragraph (1) can be 

considered non-hazardous after two 

consecutive quarters of sampling data 

meet the levels listed in paragraph (1). 


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The second part of the verification 

testing program is the annual testing of 

two representative composite samples of 

the filter cake for all constituents 

specified in paragraph (1). 

If BAE demonstrates for two 

consecutive quarters complete 

attainment of all specified limits, then 

BAE may request approval of EPA to 

reduce the frequency of testing to 

annually. If, after review of performance 

of the treatment system, EPA finds that 

annual testing is adequately protective 

of human health and the environment, 

then EPA may authorize BAE to reduce 

the quarterly comprehensive sampling 

frequency to an annual basis. If the 

annual testing of the wastes does not 

meet the delisting levels in paragraph 

(1), BAE must notify EPA according to 

the requirements in paragraph (6). EPA 

will then take the appropriate actions 

necessary to protect human health and 

the environment as described in 

paragraph (6). BAE must provide 

sampling results that support the 

rationale that the delisting exclusion 

should not be withdrawn. 

The exclusion is effective upon 

publication in the Federal Register but 

the change in waste classification as 

‘‘non-hazardous’’ cannot begin until two 

consecutive quarters of verification 

sampling comply with the levels 

specified in paragraph (1). The waste 

classification as ‘‘non-hazardous’’ is also 

not authorized, if BAE fails to perform 

the quarterly and yearly testing as 

specified herein. Should BAE fail to 

conduct the quarterly/yearly testing as 

specified herein, then disposal of filter 

cake as delisted waste may not occur in 

the following quarter(s)/year(s) until 

BAE obtains the written approval of 

EPA. 

(4) Changes in Operating Conditions 

Paragraph (4) would allow BAE the 

flexibility of modifying its processes (for 

example, changes in equipment or 

change in operating conditions) to 

improve its treatment processes. 

However, BAE must prove the 

effectiveness of the modified process 

and request approval from EPA. BAE 

must manage wastes generated during 

the new process demonstration as 

hazardous waste through verification 

sampling within 30 days of start-up. 

(5) Data Submittals 

To provide appropriate 

documentation that the BAE facility is 

correctly managing the filter cake, BAE 

must compile, summarize, and keep 

delisting records on-site for a minimum 

of five years. It should keep all 

analytical data obtained pursuant to 

paragraph (3), including quality control 

information, for five years. Paragraph (5) 

requires that BAE furnish these data 

upon request for inspection by any 

employee or representative of EPA or 

the State of Texas. 

If the proposed exclusion is made 

final, then it will apply only to 1,200 

cubic yards per calendar year of filter 

cake generated at the BAE facility after 

successful verification testing. 

EPA would require BAE to submit 

additional verification data under any of 

the following circumstances: 

(a) If BAE significantly alters the 

manufacturing process treatment system 

except as described in paragraph (4). 

(b) If BAE uses any new 

manufacturing or production 

process(es), or significantly changes the 

current process(es) described in its 

petition; or 

(c) If BAE makes any changes that 

could affect the composition or type of 

waste generated. 

BAE must submit a modification to 

the petition complete with full sampling 

and analysis for circumstances where 

the waste volume changes and/or 

additional waste codes are added to the 

waste stream. EPA will publish an 

amendment to the exclusion if the 

changes are acceptable. 

BAE must manage waste volumes 

greater than 1,200 cubic yards of filter 

cake as hazardous waste until EPA 

grants a revised exclusion. When this 

exclusion becomes final, the 

management by BAE of the filter cake 

covered in this petition would be 

relieved from Subtitle C jurisdiction. 

BAE may not classify the waste as nonhazardous until the revised exclusion is 

finalized. 

(6) Reopener 

The purpose of paragraph (6) is to 

require BAE to disclose new or different 

information related to a condition at the 

facility or disposal of the waste, if it is 

pertinent to the delisting. BAE must also 

use this procedure if the waste sample 

in the annual testing fails to meet the 

levels found in paragraph (1). This 

provision will allow EPA to reevaluate 

the exclusion, if a source provides new 

or additional information to EPA. EPA 

will evaluate the information on which 

it based the decision to see if it is still 

correct or if circumstances have 

changed so that the information is no 

longer correct or would cause EPA to 

deny the petition, if presented. 

This provision expressly requires BAE 

to report differing site conditions or 

assumptions used in the petition in 

addition to failure to meet the annual 

testing conditions within 10 days of 

discovery. If EPA discovers such 

information itself or from a third party, 

it can act on it as appropriate. The 

language being proposed is similar to 

those provisions found in RCRA 

regulations governing no-migration 

petitions at § 268.6. 

It is EPA’s position that it has the 

authority under RCRA and the 

Administrative Procedure Act (APA), 5 

U.S.C. 551 (1978) et seq., to reopen a 

delisting decision. EPA may reopen a 

delisting decision when it receives new 

information that calls into question the 

assumptions underlying the delisting. 

EPA believes a clear statement of its 

authority in delisting is merited in light 

of EPA’s experience. See the Federal 

Register notice regarding Reynolds 

Metals Company at 62 FR 37694 (July 

14, 1997) and 62 FR 63458 (December 

1, 1997) where the delisted waste 

leached at greater concentrations into 

the environment than the 

concentrations predicted when 

conducting the TCLP, leading EPA to 

repeal the delisting. If an immediate 

threat to human health and the 

environment presents itself, EPA will 

continue to address these situations on 

a case-by-case basis. Where necessary, 

EPA will make a good cause finding to 

justify emergency rulemaking. See APA 

553(b)(3)(B). 

B. What happens, if BAE violates the 

terms and conditions? 

If BAE violates the terms and 

conditions established in the exclusion, 

EPA will start procedures to withdraw 

the exclusion. Where there is an 

immediate threat to human health and 

the environment, EPA will evaluate the 

need for enforcement activities on a 

case-by-case basis. EPA expects BAE to 

conduct the appropriate waste analysis 

and comply with the criteria explained 

above in paragraph (1) of the exclusion. 

V. Public Comments 

A. How may I as an interested party 

submit comments? 

EPA is requesting public comments 

on this proposed decision. Please send 

three copies of your comments. Send 

two copies to the Chief, Corrective 

Action and Waste Minimization 

Section, Multimedia Permitting and 

Planning Division, U.S. Environmental 

Protection Agency Region 6, 1445 Ross 

Avenue, Dallas, Texas 75202. Send a 

third copy to the Industrial Hazardous 

Waste Permits Division, Technical 

Evaluation Team, Texas Commission on 

Environmental Quality, P.O. Box 13087, 

Austin, TX 78711–3087. Identify your 

comments at the top with this regulatory 

docket number: EPA–R06–RCRA–2008– 

0456. You may submit your comments 


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electronically to Wendy Jacques at 

jacques.wendy@epa.gov. 

B. How may I review the docket or 

obtain copies of the proposed 

exclusion? 

You may review the RCRA regulatory 

docket for this proposed rule at the U.S. 

Environmental Protection Agency 

Region 6, 1445 Ross Avenue, Dallas, TX 

75202. It is available for viewing in EPA 

Freedom of Information Act Review 

Room from 9 a.m. to 4 p.m., Monday 

through Friday, excluding Federal 

holidays. Call (214) 665–6444 for 

appointments. The public may copy 

material from any regulatory docket at 

no cost for the first 100 pages and at 

fifteen cents per page for additional 

copies. 

VI. Statutory and Executive Order 

Reviews 

Under Executive Order 12866, 

‘‘Regulatory Planning and Review’’ (58 

FR 51735, October 4, 1993), this rule is 

not of general applicability and 

therefore is not a regulatory action 

subject to review by the Office of 

Management and Budget (OMB). 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.) because it 

applies to a particular facility only. 

Because this rule is 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, 204, and 205 of the 

Unfunded Mandates Reform Act of 1995 

(UMRA) (Pub. L. 104–4). Because this 

rule will affect only a particular facility, 

it will not significantly or uniquely 

affect small governments, as specified in 

section 203 of UMRA. Because this rule 

will affect only a particular facility, this 

proposed rule does not have federalism 

implications. It 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, ‘‘Federalism,’’ 

(64 FR 43255, August 10, 1999). Thus, 

Executive Order 13132 does not apply 

to this rule. Similarly, because this rule 

will affect only a particular facility, this 

proposed rule does not have tribal 

implications, as specified in Executive 

Order 13175, ‘‘Consultation and 

Coordination with Indian Tribal 

Governments’’ (65 FR 67249, November 

9, 2000). Thus, Executive Order 13175 

does not apply to this rule. This rule 

also is not subject to Executive Order 

13045, ‘‘Protection of Children from 

Environmental Health Risks and Safety 

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

because it is not economically 

significant as defined in Executive 

Order 12866, and because the Agency 

does not have reason to believe the 

environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. The 

basis for this belief is that the Agency 

used the DRAS program, which 

considers health and safety risks to 

infants and children, to calculate the 

maximum allowable concentrations for 

this rule. This rule is not subject to 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355 (May 

22, 2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 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 note) do not apply. As required by 

section 3 of Executive Order 12988, 

‘‘Civil Justice Reform,’’ (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. 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 this 

action under section 801 because this is 

a rule of particular applicability. 

Lists of Subjects in 40 CFR Part 261 

Environmental protection, Hazardous 

waste, Recycling, Reporting and 

recordkeeping requirements. 

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

6921(f). 

Dated: August 29, 2008. 

Bill Luthans, 

Acting Director, Multimedia Planning and 

Permitting Division, EPA Region 6. 

For the reasons set out in the 

preamble, 40 CFR part 261 is proposed 

to be amended as follows: 

PART 261—IDENTIFICATION AND 

LISTING OF HAZARDOUS WASTE 

1. The authority citation for part 261 

continues to read as follows: 

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

6922, and 6938. 

2. In Table 2 of Appendix IX of Part 

261, add the following waste stream in 

alphabetical order by facility to read as 

follows: 

Appendix IX to Part 261—Waste 

Excluded Under §§ 260.20 and 260.22 

TABLE 2—WASTE EXCLUDED FROM SPECIFIC SOURCES

Facility Address Waste description 

* * * * * * * 

BAE Systems, Inc. ...................................... Sealy, TX ............................ Filter Cake (EPA Hazardous Waste Number F019) generated at a 

maximum rate of 1,200 cubic yards per calendar year after [insert 

publication date of the final rule]. For the exclusion to be valid, 

BAE must implement a verification testing program that meets the 

following Paragraphs: 


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TABLE 2—WASTE EXCLUDED FROM SPECIFIC SOURCES—Continued 

Facility Address Waste description 

(1) Delisting Levels: All concentrations for those constituents must 

not exceed the maximum allowable concentrations in mg/l specified 

in this paragraph. Filter Cake Leachable Concentrations (mg/l): Acetone—3211; Arsenic—0.052; Barium—100; Bis(2- 

ethylhexyl)phthalate—103; Cadmium—0.561; Chloroform—0.4924; 

Chromium—5.0; Copper—149; Cyanide—19; Furans—3.57; 

Hexavalent Chromium—5.0; Lead—3.57; Lindane—0.4; Methyl 

Ethyl Ketone—200; Nickel—82.2; Selenium—1.0; 2,4,5–TP 

(Silvex)—1.0; 2,4–D—6.65; Tin—9001; Tetrachlorodibenzo-pdioxin—249; Tetrachloroethylene—0.125685; Zinc—1240. 

(2) Waste Holding and Handling: 

(A) Waste classification as non-hazardous can not begin until compliance with the limits set in paragraph (1) for filter cake has occurred 

for two consecutive quarterly sampling events. 

(B) If constituent levels in any sample taken by BAE exceed any of 

the delisting levels set in paragraph (1) for the filter cake, BAE 

must do the following: 

(i) Notify EPA in accordance with paragraph (6) and 

(ii) Manage and dispose the filter cake as hazardous waste generated under Subtitle C of RCRA. 

(3) Testing Requirements: Upon this exclusion becoming final, BAE 

may perform quarterly analytical testing by sampling and analyzing 

the filter cake as follows: 

(A) Quarterly Testing: 

(i) Collect two representative composite samples of the filter cake at 

quarterly intervals after EPA grants the final exclusion. The first 

composite samples may be taken at any time after EPA grants the 

final approval. Sampling should be performed in accordance with 

the sampling plan approved by EPA in support of the exclusion. 

(ii) Analyze the samples for all constituents listed in paragraph (1). 

Any composite sample taken that exceeds the delisting levels listed 

in paragraph (1) for the filter cake must be disposed as hazardous 

waste in accordance with the applicable hazardous waste requirements. 

(iii) Within thirty (30) days after taking its first quarterly sample, BAE 

will report its first quarterly analytical test data to EPA. If levels of 

constituents measured in the samples of the filter cake do not exceed the levels set forth in paragraph (1) of this exclusion for two 

consecutive quarters, BAE can manage and dispose the non-hazardous filter cake according to all applicable solid waste regulations. 

(B) Annual Testing: 

(i) If BAE completes the quarterly testing specified in paragraph (3) 

above and no sample contains a constituent at a level which exceeds the limits set forth in paragraph (1), BAE may begin annual 

testing as follows: BAE must test two representative composite 

samples of the filter cake for all constituents listed in paragraph (1) 

at least once per calendar year. 

(ii) The samples for the annual testing shall be a representative composite sample according to 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 samples of the BAE filter cake are representative for 

all constituents listed in paragraph (1). 

(iii) The samples for the annual testing taken for the second and subsequent annual testing events shall be taken within the same calendar month as the first annual sample taken. 

(iv) The annual testing report should include the total amount of 

waste in cubic yards disposed during the calendar year. 


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TABLE 2—WASTE EXCLUDED FROM SPECIFIC SOURCES—Continued 

Facility Address Waste description 

(4) Changes in Operating Conditions: If BAE significantly changes the 

process described in its petition or starts any processes that generate(s) the waste that may or could affect the composition or type 

of waste generated (by illustration, but not limitation, changes in 

equipment or operating conditions of the treatment process), it 

must notify EPA in writing and it may no longer handle the wastes 

generated from the new process as non-hazardous until the wastes 

meet the delisting levels set in paragraph (1) and it has received 

written approval to do so from EPA. BAE must submit a modification to the petition complete with full sampling and analysis for circumstances where the waste volume changes and/or additional 

waste codes are added to the waste stream. 

(5) Data Submittals: BAE must submit the information described 

below. If BAE fails to submit the required data within the specified 

time or maintain the required records on-site for the specified time, 

EPA, at its discretion, will consider this sufficient basis to reopen 

the exclusion as described in paragraph (6). BAE must: 

(A) Submit the data obtained through paragraph 3 to the Chief, Corrective Action and Waste Minimization Section, Multimedia Planning and Permitting Division, U.S. Environmental Protection Agency Region 6, 1445 Ross Ave., Dallas, Texas 75202, within the time 

specified. All supporting data can be submitted on CD–ROM or 

some comparable electronic media. 

(B) Compile records of analytical data from paragraph (3), summarized, and maintained on-site for a minimum of five years. 

(C) Furnish these records and data when either EPA or the State of 

Texas requests them for inspection. 

(D) Send along with all data 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 in 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. 

If 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 reliance on the void exclusion.’’ 

(6) Reopener: 

(A) If, anytime after disposal of the delisted waste BAE possesses or 

is otherwise made aware of any environmental data (including but 

not limited to leachate data or ground water monitoring data) or 

any other data relevant to the delisted waste indicating that any 

constituent identified for the delisting verification testing is at level 

higher than the delisting level allowed by the Division Director in 

granting the petition, then the facility must report the data, in writing, to the Division Director within 10 days of first possessing or 

being made aware of that data. 

(B) If either the quarterly or annual testing of the waste does not 

meet the delisting requirements in paragraph 1, BAE must report 

the data, in writing, to the Division Director within 10 days of first 

possessing or being made aware of that data. 

(C) If BAE fails to submit the information described in paragraphs (5), 

(6)(A) or (6)(B) or if any other information is received from any 

source, the Division Director will make a preliminary determination 

as to whether the reported information requires EPA action to protect human health and/or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate 

response necessary to protect human health and the environment. 


jlentini on PROD1PC65 with PROPOSALS
54770 Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Proposed Rules 

TABLE 2—WASTE EXCLUDED FROM SPECIFIC SOURCES—Continued 

Facility Address Waste description 

(D) If the Division Director determines that the reported information 

requires action by EPA, the Division Director will notify the facility 

in writing of the actions the Division Director believes are necessary to protect human health and the environment. The notice 

shall include a statement of the proposed action and a statement 

providing the facility with an opportunity to present information as 

to why the proposed EPA action is not necessary. The facility shall 

have 10 days from the date of the Division Director’s notice to 

present such information. 

(E) Following the receipt of information from the facility described in 

paragraph (6)(D) or (if no information is presented under paragraph 

(6)(D)) the initial receipt of information described in paragraphs (5), 

(6)(A) or (6)(B), the Division Director will issue a final written determination describing EPA actions that are necessary to protect 

human health and/or the environment. Any required action described in the Division Director’s determination shall become effective immediately, unless the Division Director provides otherwise. 

(7) Notification Requirements: 

BAE Systems must do the following before transporting the delisted 

waste. Failure to provide this notification will result in a violation of 

the delisting petition and a possible revocation of the decision. 

(A) Provide a one-time written notification to any state Regulatory 

Agency to which or through which it will transport the delisted 

waste described above for disposal, 60 days before beginning such 

activities. 

(B) Update the one-time written notification if it ships the delisted 

waste into a different disposal facility. 

(C) Failure to provide this notification will result in a violation of the 

delisting variance and a possible revocation of the decision. 

* * * * * * * 

[FR Doc. E8–21227 Filed 9–22–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 261 

[EPA–R06–RCRA–2008–0457; SW–FRL– 

8713–1] 

Hazardous Waste Management 

System; Identification and Listing of 

Hazardous Waste; Proposed Exclusion 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule and request for 

comment. 

SUMMARY: EPA is proposing to grant a 

petition submitted by Cooper CrouseHinds (C–H) to exclude (or delist) a 

wastewater treatment plant (WWTP) 

sludge and filter sand (collectively, 

sludge) generated by C–H in Amarillo, 

TX from the lists of hazardous wastes. 

EPA used the Delisting Risk Assessment 

Software (DRAS) in the evaluation of 

the impact of the petitioned waste on 

human health and the environment. 

EPA bases its proposed decision to 

grant the petition on an evaluation of 

waste-specific information provided by 

the petitioner. This proposed decision, 

if finalized, would exclude the 

petitioned waste from the requirements 

of hazardous waste regulations under 

the Resource Conservation and 

Recovery Act (RCRA). 

If finalized, EPA would conclude that 

C–H’s petitioned waste is nonhazardous with respect to the original 

listing criteria. EPA would also 

conclude that C–H’s process minimizes 

short-term and long-term threats from 

the petitioned waste to human health 

and the environment. 

DATES: We will accept comments until 

October 23, 2008. We will stamp 

comments postmarked after the close of 

the comment period as ‘‘late.’’ These 

‘‘late’’ comments may not be considered 

in formulating a final decision. 

Your requests for a hearing must 

reach EPA by October 8, 2008. The 

request must contain the information 

described in § 260.20(d). 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

RCRA–2008–0457 by one of the 

following methods: 

1. Federal eRulemaking Portal: 

http://www.regulations.gov: follow the 

on-line instructions for submitting 

comments. 

2. E-mail: kim.youngmoo@epa.gov. 

3. Mail: Youngmoo Kim, 

Environmental Protection Agency, 

Multimedia Planning and Permitting 

Division, RCRA Branch, Mail Code: 

6PD–C, 1445 Ross Avenue, Dallas, TX 

75202. 

4. Hand Delivery or Courier: Deliver 

your comments to: Youngmoo Kim, 

Environmental Protection Agency, 

Multimedia Planning and Permitting 

Division, RCRA Branch, Mail Code: 

6PD–C, 1445 Ross Avenue, Dallas, TX 

75202. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–RCRA–2008– 

0457. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 


jlentini on PROD1PC65 with PROPOSALS