[Federal Register: September 23, 2008 (Volume 73, Number 185)]
[Proposed Rules]
[Page 54770-54780]
[DOCID:fr23se08-34]

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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.

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SUMMARY: EPA is proposing to grant a petition submitted by Cooper
Crouse-Hinds (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
non-hazardous 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 Sec.  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<EMAIL_ADDRESS>    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://

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. 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
at 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-
2008-0457, is available for viewing from 9 a.m. to 4 p.m., Monday
through Friday, excluding Federal holidays. The public may copy
material from the regulatory docket at no cost for the first 100 pages
and at $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 technical information regarding
the Cooper Crouse-Hinds petition, contact Youngmoo Kim at<PHONE_NUMBER>
or by e-mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:

I. Overview Information
    A. What action is EPA proposing?
    B. Why is EPA proposing to approve this delisting?
    C. How will C-H 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 C-H petition EPA to delist?
    B. Who is C-H and what process does it use to generate the
petitioned waste?
    C. How did C-H sample and analyze the data in this petition?
    D. What were the results of C-H's analyses?
    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 C-H'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 C-H 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:
    (1) To grant C-H's delisting petition to have its WWTP sludge
excluded, or delisted, from the definition of a hazardous waste; and
subject to certain verification and monitoring conditions.
    (2) To use the Delisting Risk Assessment Software (DRAS) to
evaluate the potential impact of the petitioned waste on human health
and the environment. The Agency used this model to predict the
concentration of hazardous constituents released from the petitioned
waste, once it is disposed.

B. Why is EPA proposing to approve this delisting?

    C-H's petition requests an exclusion from the F006 waste listing
pursuant to 40 CFR 260.20 and 260.22. C-H does not believe that the
petitioned waste meets the criteria for which EPA listed it. C-H 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)
(hereinafter all sectional references are to 40 CFR unless otherwise
indicated). In making the initial delisting determination, EPA
evaluated the petitioned waste against the listing criteria and factors
cited in Sec. Sec.  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 C-H is based on the information submitted in support
of this rule, including descriptions of the wastes and analytical data
from the Amarillo, TX facility.

C. How will C-H manage the waste, if it is delisted?

    If the sludge is delisted, the WWTP sludge from C-H will be
disposed of at the following RCRA Subtitle D lined landfill with a
leachate collection system: The Allied Waste Service Southwest Subtitle
D landfill in Canyon, Texas.

D. When would the proposed delisting exclusion be finalized?

    RCRA section 3001(f) specifically requires EPA to provide a notice
and an opportunity for comment before granting or denying a final
exclusion. Thus, EPA will not grant the exclusion until it addresses
all timely public comments (including those at public hearings, if any)
on this proposal.
    RCRA section 3010(b)(1) at 42 USCA 6930(b)(1), allows rules to
become effective in less than six months 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 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.
    EPA allows 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.
    EPA has also authorized some states (for example, Louisiana,
Oklahoma, Georgia, Illinois) to administer a RCRA delisting program in
place of the Federal program, that is, to make state delisting
decisions. Therefore, this exclusion does not apply in those authorized
states unless that state makes the rule part of its authorized program.
If C-H transports the petitioned waste to or manages the waste in any
state with delisting authorization, C-H must obtain delisting
authorization from that state before it can manage the waste as non-
hazardous in the state.

II. Background

A. What is the history of the delisting program?

    EPA published an amended list of hazardous wastes from non-specific
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 Sec. Sec.  261.31
and 261.32.
    EPA lists these wastes as hazardous because: (1) The wastes
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), (2) the wastes
meet the criteria for listing contained in Sec. Sec.  261.11(a)(2) or
(a)(3), or (3) the wastes are mixed with or derived from the treatment,
storage or disposal of such characteristic and listed wastes and which
therefore become hazardous under Sec. Sec.  261.3(a)(2)(iv) or
(c)(2)(i), known as the ``mixture'' or ``derived-from'' rules,
respectively.
    Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
described in these regulations or resulting from the operation of the
mixture or derived-from rules generally is hazardous, a specific waste
from an individual facility may not be hazardous.
    For this reason, Sec. Sec.  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 consider the wastes
hazardous under RCRA regulations.
    In a delisting petition, the petitioner must show that wastes
generated at a particular facility do not meet any of the criteria for
which the waste was listed. The criteria for which EPA lists a waste
are in part 261 and further explained in the background documents for
the listed waste.
    In addition, under Sec.  260.22, a petitioner must prove that the
waste does not exhibit any of the hazardous waste characteristics (that
is, ignitability, reactivity, corrosivity, and toxicity) and present
sufficient information for EPA to decide whether factors other than
those for which the waste was listed warrant retaining it as a
hazardous waste. (See part 261 and the background documents for the
listed waste.)
    Generators remain obligated under RCRA to confirm whether their
waste remains 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 Sec.  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 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 Sec. Sec.  261.3(a)(2)(iii and
iv) and (c)(2)(i), called the ``mixture'' and ``derived-from'' 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 C-H petition EPA to delist?

    On March 25, 2008, C-H petitioned EPA to exclude from the lists of
hazardous wastes contained in Sec.  261.31, WWTP sludge (F006)
generated from its facility located in Amarillo, Texas. The waste falls
under the classification of listed waste pursuant to Sec.  261.31.
Specifically, in its petition, C-H requested that EPA grant a standard
exclusion for 819 cubic yards per year of the WWTP sludge.

B. Who is C-H and what process does it use to generate the petitioned
waste?

    The facility manufactures electrical fittings plated zinc for
corrosion resistance. Non-current electrical wiring system products
commonly called conduit fitting have been manufactured at this facility
since 1982. The zinc plating system is non-cyanide containing zinc
chloride to electroplate zinc onto cast gray iron electrical fittings
to reduce the potential for the fittings to corrode when installed in
outdoor or chemical environment. The sludge is generated by wastewater
treatment of the zinc plating rinse water to remove oil, grease and
metals.
    The sludge is transferred to filter press and separate particles
from the liquid, creating the filter press sludge cake. The final stage
of wastewater treatment system includes two sand filters that serve to
polish the discharged water. The sludge cake and used sands are listed
as listed hazardous, F006 and disposed in a RCRA Subtitle C permitted
hazardous waste landfill in Emelle, Alabama.

C. How did C-H sample and analyze the data in this petition?

    To support its petition, C-H submitted:
    (1) Historical information on waste generation and management
practices;
    (2) Analytical results from four samples for total concentrations
of compounds of concern (COCs);
    (3) Analytical results from four samples for Toxicity
Characteristic Leaching Procedure (TCLP) extract values of COCs; and
    (4) Multiple pH testing for the petitioned waste.

D. What were the results of C-H's analyses?

    EPA believes that the descriptions of the C-H analytical
characterization provide a reasonable basis to grant C-H's petition for
an exclusion of the WWTP sludge. EPA believes the data submitted in
support of the petition show the WWTP sludge is non-hazardous.
Analytical data for the WWTP sludge samples were used in the DRAS to
develop delisting levels. The data summaries for COCs are presented in
Table I. EPA has reviewed the sampling procedures used by C-H and has
determined that it satisfies EPA criteria for collecting representative
samples of the variations in constituent concentrations in the WWTP
sludge. In addition, the data submitted in support of the petition show
that constituents in C-H's waste are presently below health-based
levels used in the delisting decision-making. EPA believes that C-H has
successfully demonstrated that the WWTP sludge is non-hazardous.

                      Table 1--Analytical Results/Maximum Allowable Delisting Concentration
                       [Wastewater Treatment Sludge--Cooper Crouse-Hinds, Amarillo, Texas]
----------------------------------------------------------------------------------------------------------------
                                                                                Maximum allowable
                      Constituents                       Maximum total (mg/ Maximum TCLP (mg/    TCLP delisting
                                                                kg)                 L)            level (mg/L)
----------------------------------------------------------------------------------------------------------------
Arsenic................................................              <2.00              0.072             0.0759
Barium.................................................               11.2               1.08              (100)
Benzene................................................              <0.02            0.00218              (0.5)
Cadmium................................................               1.58              0.006              0.819
Cooper.................................................               7.41              0.049                216
Iron...................................................              26200              0.197               1.24
Manganese..............................................                693               1.60                145
Nickel.................................................               4.71              0.014                119
Zinc...................................................              27300               1.51              1810
----------------------------------------------------------------------------------------------------------------
Notes:
1. These levels represent the highest constituent concentration found in any one sample and do not necessarily
  represent the specific level found in one sample.
2. The delisting levels are from the DRAS analyses except the chemicals with a parenthesis which are the TCLP
  regulatory levels.

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 back-calculate the acceptable receptor well concentrations
(referred to as compliance-point concentrations) using standard risk
assessment algorithms and Agency health-based numbers. Using the
maximum compliance-point concentrations and 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 wind-blown particulate from the landfill). As
in the above ground water analyses, the DRAS uses the risk level, the
health-based data and standard risk assessment and exposure algorithms
to predict maximum compliance-point concentrations of waste
constituents at a hypothetical point of exposure. Using fate and
transport equations, the DRAS uses the maximum compliance-point
concentrations and back-calculates the maximum allowable waste
constituent concentrations (or ``delisting levels'').
    In most cases, because a delisted waste is no longer subject to
hazardous waste control, EPA is generally unable to predict, and does
not presently control, how a petitioner will manage a waste after
delisting. Therefore, EPA currently believes that it is inappropriate
to consider extensive site-specific 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 long-term threats to human health and the environment are
minimized.
    The DRAS results, which calculated the maximum allowable
concentration of chemical constituents in the wastes are presented in
Table 1. Based on the comparison of the DRAS results and maximum TCLP
concentrations found in Table 1, the petitioned wastes should be
delisted because no constituents of concern are likely to be present or
formed as reaction products or by products in the wastes.

 F. What changes have been made to the DRAS model?

    Since July 2004, EPA has been preparing an update of the DRAS
version 2.0. The software will be released as version 3.0. This
methodology was used to evaluate the C-H petition. The DRAS 3.0
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 ground water, the DRAS utilizes conservative
dilution-attenuation 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 ground water 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 a 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 air-volatile 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
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 if
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.

G. What did EPA conclude about C-H's analysis?

    EPA concluded, after reviewing C-H's processes that no other
hazardous constituents of concern, other than those for which tested,
are likely to be present or formed as reaction products

or by-products in the waste. In addition, on the basis of explanations
and analytical data provided by C-H, pursuant to Sec.  260.22, EPA
concludes that the petitioned waste do not exhibit any of the
characteristics of ignitability, corrosivity, reactivity or toxicity.
See Sec. Sec.  261.21, 261.22 and 261.23, respectively.

H. What other factors did EPA consider in its evaluation?

    During the evaluation of C-H's petition, EPA also considered the
potential impact of the petitioned waste via non-ground water routes
(i.e., air emission and surface runoff). With regard to airborne
dispersion in particular, EPA believes that exposure to airborne
contaminants from C-H's petitioned waste is unlikely. Therefore, no
appreciable air releases are likely from C-H's waste under any likely
disposal conditions. EPA evaluated the potential hazards resulting from
the unlikely scenario of airborne exposure to hazardous constituents
released from C-H's waste in an open landfill. The results of this
worst-case analysis indicated that there is no substantial present or
potential hazard to human health and the environment from airborne
exposure to constituents from C-H's WWTP waste.

I. What is EPA's evaluation of this delisting petition?

    The descriptions of C-H's hazardous waste process and analytical
characterization provide a reasonable basis for EPA to grant the
exclusion. The data submitted in support of the petition show that
constituents in the waste are below the leachable concentrations (see
Table I). EPA believes that C-H's waste, F006 from zinc electroplating
process will not impose any threat to human health and the environment.
    Thus, EPA believes C-H should be granted an exclusion for the WWTP
sludge. EPA believes the data submitted in support of the petition show
C-H's WWTP sludge is non-hazardous. The data submitted in support of
the petition show that constituents in C-H's waste are presently below
the compliance point concentrations used in the delisting decision and
would not pose a substantial hazard to the environment. EPA believes
that C-H has successfully demonstrated that the WWTP sludge is non-
hazardous.
    EPA therefore, proposes to grant an exclusion to C-H in Amarillo,
Texas, for the WWTP sludge described in its petition. EPA's decision to
exclude this waste is based on descriptions of the treatment activities
associated with the petitioned waste and characterization of the WWTP
sludge.
    If EPA finalizes the proposed rule, EPA will no longer regulate the
petitioned waste under parts 262 through 268 and the permitting
standards of part 270.

IV. Next Steps

A. With what conditions must the petitioner comply?

    The petitioner, C-H, must comply with the requirements in 40 CFR
part 261, appendix IX, Table 1. The text below gives the rationale and
details of those requirements.
(1) Delisting Levels
    This paragraph provides the levels of constituents for which C-H
must test the WWTP sludge, below which these wastes would be considered
non-hazardous. EPA selected the set of inorganic and organic
constituents specified in paragraph (1) of 40 CFR part 261, appendix
IX, Table 1, (the exclusion language) based on information in the
petition. EPA compiled the inorganic and organic constituents list from
the composition of the waste, descriptions of C-H's treatment process,
previous test data provided for the waste, and the respective health-
based levels used in delisting decision-making. These delisting levels
correspond to the allowable levels measured in the TCLP concentrations.
(2) Waste Holding and Handling
    The purpose of this paragraph is to ensure that C-H manages and
disposes of any WWTP sludge that contains hazardous levels of inorganic
and organic constituents according to Subtitle C of RCRA. Managing the
WWTP sludge as a hazardous waste until initial verification testing is
performed will protect against improper handling of hazardous material.
If EPA determines that the data collected under this paragraph do not
support the data provided for in the petition, the exclusion will not
cover the petitioned waste. The exclusion is effective upon publication
in the Federal Register but the disposal as non-hazardous cannot begin
until the verification sampling is completed.
(3) Verification Testing Requirements
    C-H must complete a rigorous verification testing program on the
WWTP sludge to assure that the sludge does not exceed the maximum
levels specified in paragraph (1) of the exclusion language. This
verification program operates on two levels. The first part of the
verification testing program consists of testing the WWTP sludge for
specified indicator parameters as per paragraph (1) of the exclusion
language. If EPA determines that the data collected under this
paragraph do not support the data provided for the petition, the
exclusion will not cover the generated wastes. If the data from the
initial verification testing program demonstrate that the leachate
meets the delisting levels, C-H may request quarterly testing. EPA will
notify C-H in writing, if and when it may replace the testing
conditions in paragraph (3)(A) with the testing conditions in (3)(B) of
the exclusion language.
    The second part of the verification testing program is the
quarterly testing of representative samples of WWTP sludge for all
constituents specified in paragraph (1) of the exclusion language. EPA
believes that the concentrations of the constituents of concern in the
WWTP sludge may vary over time. Consequently this program will ensure
that the sludge is evaluated in terms of variation in constituent
concentrations in the waste over time.
    The proposed subsequent testing would verify that C-H operates a
treatment facility where the constituent concentrations of the WWTP
sludge do not exhibit unacceptable temporal and spatial levels of toxic
constituents. EPA is proposing to require C-H to analyze representative
samples of the WWTP sludge quarterly during the first year of waste
generation. C-H would begin quarterly sampling 60 days after the final
exclusion as described in paragraph (3)(B) of the exclusion language.
EPA, per paragraph 3(C) of the exclusion language, is proposing to end
the subsequent testing conditions after the first year, if C-H has
demonstrated that the waste consistently meets the delisting levels. To
confirm that the characteristics of the waste do not change
significantly over time, C-H must continue to analyze a representative
sample of the waste on an annual basis. Annual testing requires
analyzing the full list of components in paragraph (1) of the exclusion
language. If operating conditions change as described in paragraph (4)
of the exclusion language; C-H must reinstate all testing in paragraph
(1) of the exclusion language. C-H must prove through a new
demonstration that their waste meets the conditions of the exclusion.
If the annual testing of the waste does not meet the delisting
requirements in paragraph (1), C-H must notify EPA according to the
requirements in paragraph (6) of the exclusion language. The facility
must provide sampling results that support

the rationale that the delisting exclusion should not be withdrawn.
(4) Changes in Operating Conditions
    Paragraph (4) of the exclusion language would allow C-H the
flexibility of modifying its processes (for example, changes in
equipment or change in operating conditions) to improve its treatment
process. However, C-H must prove the effectiveness of the modified
process and request approval from EPA. C-H must manage wastes generated
during the new process demonstration as hazardous waste until it has
obtained written approval and paragraph (3) of the exclusion language
is satisfied.
(5) Data Submittals
    To provide appropriate documentation that C-H's WWTP sludge is
meeting the delisting levels, C-H must compile, summarize, and keep
delisting records on-site for a minimum of five years. It should keep
all analytical data obtained through paragraph (3) of the exclusion
language including quality control information for five years.
Paragraph (5) of the exclusion language requires that C-H 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, it
will apply only to 819 yards per year of wastewater treatment sludge
generated at the C-H after successful verification testing.
    EPA would require C-H to file a new delisting petition under any of
the following circumstances:
    (a) If it significantly alters the manufacturing process treatment
system except as described in paragraph (4) of the exclusion language;
    (b) If it uses any new manufacturing or production process(es), or
significantly changes from the current process(es) described in their
petition; or
    (c) If it makes any changes that could affect the composition or
type of waste generated.
    C-H must manage waste volumes greater than 819 cubic yards per year
of WWTP waste as hazardous until EPA grants a new exclusion. When this
exclusion becomes final, C-H's management of the wastes covered by this
petition would be relieved from Subtitle C jurisdiction, the WWTP
sludge from C-H will be disposed to the RCRA Subtitle D landfill of the
Allied Waste Service Southwest in Canyon, TX.
(6) Reopener
    The purpose of paragraph (6) of the exclusion language is to
require C-H 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. C-H 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 EPA 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 C-H 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 Sec.  268.6.
    EPA believes 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 delistings is merited in light of EPA's experience. See
Reynolds Metals Company at 62 FR 37694 and 62 FR 63458 where the
delisted waste leached at greater concentrations in the environment
than the concentrations predicted when conducting the TCLP, thus
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).
(7) Notification Requirements
    In order to adequately track wastes that have been delisted, EPA is
requiring that C-H provide a one-time notification to any state
regulatory agency through which or to which the delisted waste is being
carried. C-H must provide this notification 60 days before commencing
this activity.

B. What happens if C-H violates the terms and conditions?

    If C-H 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 C-H 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 Ben Banipal,
Section Chief of the Corrective Action and Waste Minimization Section
(6PD-C), Multimedia Planning and Permitting Division, Environmental
Protection Agency (EPA), 1445 Ross Avenue, Dallas, Texas 75202. Send a
third copy to Jackee Hardy, Waste Division, Texas Commission on
Environmental Quality, P.O. Box 13087, Austin, TX 78711. Identify your
comments at the top with this regulatory docket number: ``EPA-R06-RCRA-
2008-0457.'' You may submit your comments electronically to Youngmoo
Kim at<EMAIL_ADDRESS>    You should submit requests for a hearing to Ben Banipal, Section
Chief of the Corrective Action and Waste Minimization Section (6PD-C),
Multimedia Planning and Permitting Division, U. S. Environmental
Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202.

B. How may I review the docket or obtain copies of the proposed
exclusion?

    You may review the RCRA regulatory docket for this proposed rule at
the Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas,
Texas 75202. It is available for viewing in the EPA Freedom of
Information Act Review Room from 9 a.m. to 4 p.m., Monday through
Friday, excluding Federal holidays. Call<PHONE_NUMBER> 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) (Public
Law 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 28, 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 1 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 Sec. Sec.  260.20 and
260.22

            Table 1--Waste Excluded From Non-Specific Sources
------------------------------------------------------------------------
           Facility                  Address         Waste description
------------------------------------------------------------------------

                              * * * * * * *
Cooper Crouse-Hinds...........  Amarillo , TX....  Wastewater Treatment
                                                    Sludge (EPA
                                                    Hazardous Waste No.
                                                    F006) generated at a
                                                    maximum annual rate
                                                    of 819 cubic yards
                                                    per calendar year
                                                    after [insert
                                                    publication date of
                                                    the final rule] will
                                                    be disposed in
                                                    Subtitle D landfill.
                                                    For the exclusion to
                                                    be valid, C-H must
                                                    implement a
                                                    verification testing
                                                    program that meets
                                                    the following
                                                    paragraphs:
                                                   (1) Delisting Levels:
                                                    All leachable
                                                    concentrations for
                                                    those constituents
                                                    must not exceed the
                                                    following levels (mg/
                                                    l for TCLP): Arsenic-
                                                    0.0759; Barium-100;
                                                    Cadmium-0.819;
                                                    Copper-216; Iron-
                                                    1.24; Manganese-145;
                                                    Nickel-119; Zinc-18;
                                                    Benzene-0.5.
                                                   (2) Waste Management:
                                                    (A) C-H must manage
                                                    as hazardous all
                                                    WWTP sludge
                                                    generated, until it
                                                    has completed
                                                    initial verification
                                                    testing described in
                                                    paragraph (3)(A) and
                                                    (B), as appropriate,
                                                    and valid analyses
                                                    show that
                                                    paragraph(1) is
                                                    satisfied.
                                                   (B) Levels of
                                                    constituents
                                                    measured in the
                                                    samples of the WWTP
                                                    sludge that do not
                                                    exceed the levels
                                                    set forth in
                                                    paragraph (1) are
                                                    non-hazardous. C-H
                                                    can manage and
                                                    dispose of the non-
                                                    hazardous WWTP
                                                    sludge according to
                                                    all applicable solid
                                                    waste regulations.

                                                   (C) If constituent
                                                    levels in a sample
                                                    exceed any of the
                                                    Delisting Levels set
                                                    in paragraph (1) C-H
                                                    can collect one
                                                    additional sample
                                                    and perform
                                                    expedited analyses
                                                    to verify if the
                                                    constituent exceeds
                                                    the delisting level.
                                                    If this sample
                                                    confirms the
                                                    exceedance, C-H
                                                    must, from that
                                                    point forward, treat
                                                    the waste as
                                                    hazardous until it
                                                    is demonstrated that
                                                    the waste again
                                                    meets the levels in
                                                    paragraph (1) C-H
                                                    must manage and
                                                    dispose of the waste
                                                    generated under
                                                    Subtitle C of RCRA
                                                    from the time that
                                                    it becomes aware of
                                                    any exceedance.
                                                   (D) Upon completion
                                                    of the verification
                                                    testing described in
                                                    paragraph 3(A) and
                                                    (B) as appropriate
                                                    and the transmittal
                                                    of the results to
                                                    EPA, and if the
                                                    testing results meet
                                                    the requirements of
                                                    paragraph (1), C-H
                                                    may proceed to
                                                    manage its WWTP
                                                    sludge as non-
                                                    hazardous waste. If
                                                    subsequent
                                                    Verification Testing
                                                    indicates an
                                                    exceedance of the
                                                    Delisting Levels in
                                                    paragraph (1), C-H
                                                    must manage the WWTP
                                                    sludge as a
                                                    hazardous waste
                                                    until two
                                                    consecutive
                                                    quarterly testing
                                                    samples show levels
                                                    below the Delisting
                                                    Levels in paragraph
                                                    (1).
                                                   (3) Verification
                                                    Testing
                                                    Requirements: C-H
                                                    must perform sample
                                                    collection and
                                                    analyses, including
                                                    quality control
                                                    procedures, 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
                                                    8260B, 1311/8260B,
                                                    8270C, 1311/8270C,
                                                    6010B. 7470, 9034A,
                                                    9012A, ASTMD-4982B,
                                                    ASTMD-5049, E413.2.
                                                    Methods must meet
                                                    Performance Based
                                                    Measurement System
                                                    Criteria in which
                                                    the Data Quality
                                                    Objectives are to
                                                    demonstrate that
                                                    representative
                                                    samples of C-H's
                                                    F006 sludge meet the
                                                    delisting levels in
                                                    paragraph (1). If
                                                    EPA judges the
                                                    process to be
                                                    effective under the
                                                    operating conditions
                                                    used during the
                                                    initial verification
                                                    testing, C-H may
                                                    replace the testing
                                                    required in
                                                    paragraph (3)(A)
                                                    with the testing
                                                    required in
                                                    paragraph (3)(B). C-
                                                    H Plant must
                                                    continue to test as
                                                    specified in
                                                    paragraph (3)(A)
                                                    until and unless
                                                    notified by EPA in
                                                    writing that testing
                                                    in paragraph (3)(A)
                                                    may be replaced by
                                                    paragraph (3)(B).
                                                   (A) Initial
                                                    Verification
                                                    Testing: After EPA
                                                    grants the final
                                                    exclusion, C-H must
                                                    do the following:
                                                   (i) Within 60 days of
                                                    this exclusions
                                                    becoming final,
                                                    collect eight
                                                    samples, before
                                                    disposal, of the
                                                    WWTP sludge.
                                                   (ii) The samples are
                                                    to be analyzed and
                                                    compared against the
                                                    Delisting Levels in
                                                    paragraph (1).
                                                   (iii) Within sixty
                                                    (60) days after this
                                                    exclusion becomes
                                                    final, C-H will
                                                    report initial
                                                    verification
                                                    analytical test data
                                                    for the WWTP sludge,
                                                    including analytical
                                                    quality control
                                                    information for the
                                                    first thirty (30)
                                                    days of operation
                                                    after this exclusion
                                                    becomes final. If
                                                    levels of
                                                    constituents
                                                    measured in the
                                                    samples of the WWTP
                                                    sludge that do not
                                                    exceed the levels
                                                    set forth in
                                                    paragraph (1) are
                                                    also non-hazardous
                                                    in two consecutive
                                                    quarters after the
                                                    first thirty (30)
                                                    days of operation
                                                    after this exclusion
                                                    become effective, C-
                                                    H can manage and
                                                    dispose of the WWTP
                                                    sludge according to
                                                    all applicable solid
                                                    waste regulations.
                                                   (B) Subsequent
                                                    Verification
                                                    Testing: Following
                                                    written notification
                                                    by EPA, C-H may
                                                    substitute the
                                                    testing conditions
                                                    in (3)(B) for
                                                    (3)(A). C-H must
                                                    continue to monitor
                                                    operating
                                                    conditions, and
                                                    analyze two
                                                    representative
                                                    samples of the
                                                    wastewater treatment
                                                    sludge for each
                                                    quarter of operation
                                                    during the first
                                                    year of waste
                                                    generation. The
                                                    samples must
                                                    represent the waste
                                                    generated during the
                                                    quarter. After the
                                                    first year of
                                                    analytical sampling
                                                    verification
                                                    sampling can be
                                                    performed on a
                                                    single annual sample
                                                    of the wastewater
                                                    treatment sludge.
                                                    The results are to
                                                    be compared to the
                                                    Delisting Levels in
                                                    paragraph (1).
                                                   (C) Termination of
                                                    Testing: (i) After
                                                    the first year of
                                                    quarterly testing,
                                                    if the Delisting
                                                    Levels in paragraph
                                                    (1) are met, C-H may
                                                    then request that
                                                    EPA not require
                                                    quarterly testing.
                                                   (ii) Following
                                                    cancellation of the
                                                    quarterly testing, C-
                                                    H Plant must
                                                    continue to test a
                                                    representative
                                                    sample for all
                                                    constituents listed
                                                    in paragraph (1)
                                                    annually.

                                                   (4) Changes in
                                                    Operating
                                                    Conditions: If C-H
                                                    significantly
                                                    changes the process
                                                    described in its
                                                    petition or starts
                                                    any processes that
                                                    generate(s) the
                                                    waste that may or
                                                    could significantly
                                                    affect the
                                                    composition or type
                                                    of waste generated
                                                    as established under
                                                    paragraph (1) (by
                                                    illustration, but
                                                    not limitation,
                                                    changes in equipment
                                                    or operating
                                                    conditions of the
                                                    treatment process),
                                                    it must notify EPA
                                                    in writing; 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.
                                                   (5) Data Submittals:
                                                    C-H must submit the
                                                    information
                                                    described below. If
                                                    C-H 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.C-H
                                                    must:
                                                   (A) Submit the data
                                                    obtained through
                                                    paragraph (3) to the
                                                    Section Chief,
                                                    Corrective Action
                                                    and Waste
                                                    Minimization
                                                    Section, EPA Region
                                                    6, 1445 Ross Avenue,
                                                    Dallas, Texas 75202-
                                                    2733, Mail Code,
                                                    (6PD-C) within the
                                                    time specified.
                                                   (B) Compile records
                                                    of operating
                                                    conditions and
                                                    analytical data from
                                                    paragraph (3),
                                                    summarized, and
                                                    maintained on-site
                                                    for a minimum of
                                                    five years.
                                                   (C) Furnish these
                                                    records and data
                                                    when 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. Sec.   1001
                                                    and 42 U.S.C. Sec.
                                                    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) Re-Opener: (A)
                                                    If, anytime after
                                                    disposal of the
                                                    delisted waste, C-H
                                                    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 the annual
                                                    testing of the waste
                                                    does not meet the
                                                    delisting
                                                    requirements in
                                                    paragraph (1), C-H
                                                    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 C-H 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.

                                                   (D) If the Division
                                                    Director determines
                                                    that the reported
                                                    information does
                                                    require action,
                                                    EPA's 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 action by
                                                    EPA 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's
                                                    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: C-H
                                                    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 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.

                              * * * * * * *
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[FR Doc. E8-21228 Filed 9-22-08; 8:45 am]

BILLING CODE 6560-50-P