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

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: January 15, 2002 (Volume 67, Number 10)]
[Rules and Regulations]
[Page 1888-1896]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ja02-5]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-7125-1]

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

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: The EPA (also, ``the Agency'' or ``we'' in this preamble) is
granting a delisting to Heritage Environmental Services, LLC (Heritage)
to exclude treated Electric Arc Furnace Dust (EAFD) produced at Nucor
Steel, Division of Nucor Corporation (Nucor) located in Crawfordsville,
Indiana from the lists of hazardous wastes.
After careful analysis, the EPA has concluded that the petitioned
waste is not a hazardous waste when disposed of in a Subtitle D
landfill. Today's action conditionally excludes the petitioned waste
from the requirements of the hazardous waste regulations under the
Resource Conservation and Recovery Act (RCRA) only if the waste is
disposed of in a Subtitle D landfill which is permitted, licensed, or
registered by a State to manage industrial solid waste.

EFFECTIVE DATE: This rule is effective on January 15, 2002.

ADDRESSES: The RCRA regulatory docket for this final rule is located at
the U.S. EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60604, and is
available for viewing from 8:00 a.m. to 4:00 p.m., Monday through
Friday, excluding federal holidays. Call Todd Ramaly at (312) 353-9317
for appointments. The public may copy material from the regulatory
docket at $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For technical information concerning
this document, contact Todd Ramaly at the address above or at (312)
353-9317.

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

I. Background
A. What Is a Delisting Petition?
B. What Regulations Allow a Waste to Be Delisted?
II. Heritage's Delisting Petition
A. What Waste Did Heritage Petition EPA to Delist?
B. What Information Must the Petitioner Supply?
C. What Information Did Heritage Submit to Support This
Petition?
III. EPA's Evaluation and Final Rule
A. What Decision Is EPA Finalizing and Why?
B. What Are the Terms of This Exclusion?
C. When Is the Delisting Effective?
D. How Does This Action Affect the States?
IV. Public Comments Received on the Proposed Exclusion
A. Comments and Responses from EPA
V. Regulatory Impact
VI. Congressional Review Act
VII. Executive Order 12875

I. Background

A. What Is a Delisting Petition?

A delisting petition is a request from to exclude waste from the
list of hazardous wastes under RCRA regulations. In a delisting
petition, the petitioner must show that waste generated at a particular
facility does not meet any of the criteria for which EPA listed the
waste as set forth in 40 CFR 261.11 and the background document for the
waste. In addition, a petitioner must demonstrate that the waste does
not exhibit any of the hazardous waste characteristics (that is,
ignitability, reactivity, corrosivity, and toxicity) and must present
sufficient information for us to decide whether factors other than
those for which the waste was listed warrant retaining it as a
hazardous waste.
A petitioner remains obligated under RCRA to confirm that the waste
remains nonhazardous based on the hazardous waste characteristics even
if EPA has ``delisted'' the waste.

B. What Regulations Allow a Waste To Be Delisted?

Under 40 CFR 260.20 and 260.22, a person may petition the EPA to
remove

[[Page 1889]]

waste at a particular generating facility from hazardous waste control
by excluding the waste from the lists of hazardous wastes contained in
Secs. 261.31 and 261.32. Specifically, Sec. 260.20 allows any person to
petition the EPA to modify or revoke any provision of parts 260 through
266, 268, and 273 of Title 40 of the Code of Federal Regulations.
Section 260.22 provides a person the opportunity to petition the EPA to
exclude a waste on a ``generator specific'' basis from the hazardous
waste lists.

II. Heritage's Delisting Petition

A. What Waste Did Heritage Petition EPA to Delist?

On August 3, 1999, Heritage petitioned EPA to exclude an annual
volume of 30,000 cubic yards of K061 EAFD generated at Nucor Steel
Corporation located in Crawfordsville, Indiana from the list of
hazardous wastes contained in 40 CFR 261.32. K061 is defined as
``emission control dust/sludge from the primary production of steel in
electric arc furnaces.''

B. What Information Must the Petitionor Supply?

Petitioners must provide sufficient information to allow the EPA to
determine that the waste does not meet any of the criteria for which it
was listed as a hazardous waste. In addition, where there is a
reasonable basis to believe that factors other than those for which the
waste was listed (including additional constituents) could cause the
waste to be hazardous, the EPA must determine that such factors do not
warrant retaining the waste as hazardous.

C. What Information Did Heritage Submit To Support This Petition?

To support its petition, Heritage submitted descriptions and
schematic diagrams of the EAFD treatment system; and detailed chemical
and physical analyses of the treated EAFD.

III. EPA's Evaluation and Final Rule

A. What Decision Is EPA Finalizing and Why?

Today the EPA is finalizing an exclusion to Heritage for a 30,000
cubic yards annual volume of K061 EAFD generated at the Nucor Steel
facility in Crawfordsville, Indiana and treated by Heritage from the
list of hazardous wastes.
Heritage petitioned EPA to exclude, or delist, the treated EAFD
because Heritage believes that the petitioned waste does not meet the
RCRA criteria for which it was listed and that there are no additional
constituents or factors which could cause the waste to be hazardous.
Review of this petition included consideration of the original listing
criteria, as well as the additional factors required by the Hazardous
and Solid Waste Amendments of 1984 (HSWA). See section 222 of HSWA, 42
United States Code (U.S.C.) 6921(f), and 40 CFR 260.22 (d)(2)-(4).
On December 5, 2000, EPA proposed to exclude or delist Heritage's
treated EAFD from the list of hazardous wastes in 40 CFR 261.32 and
accepted public comment on the proposed rule (65 FR 75897). EPA
considered all comments received, and for reasons stated in both the
proposal and this document, we believe that the treated waste generated
at the Nucor facility should be excluded from hazardous waste control.

B. What Are the Terms of This Exclusion?

Heritage must dispose of the treated EAFD in a Subtitle D landfill
which has groundwater monitoring and which is permitted, licensed, or
registered by a state to manage industrial waste. This exclusion is
valid for a maximum annual rate of 30,000 cubic yards per year. Any
amount exceeding this volume is not delisted under this exclusion. This
exclusion is effective only if all conditions contained in today's rule
are satisfied.

C. When Is the Delisting Effective?

This rule is effective January 15, 2002. The Hazardous and Solid
Waste Amendments of 1984 amended section 3010 of RCRA to allow rules to
become effective in less than six months when the regulated community
does not need the six-month period to come into compliance. This rule
reduces rather than increases the existing requirements and, therefore,
is effective immediately upon publication under the Administrative
Procedure Act, pursuant to 5 U.S.C. 553(d).

D. How Does This Action Affect the States?

Because EPA is issuing today's exclusion under the federal RCRA
delisting program, only states subject to federal RCRA delisting
provisions would be affected. This exclusion may not be effective in
states having a dual system that includes federal RCRA requirements and
their own requirements, or in states which have received our
authorization 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. These more stringent requirements may include a provision that
prohibits a federally issued exclusion from taking effect in the state.
Because a dual system (that is, both federal (RCRA) and state (non-RCRA
programs) may regulate a petitioner's waste, we urge petitioners to
contact the state regulatory authority to establish the status of their
wastes under the state law.
EPA has also authorized some states to administer a delisting
program in place of the federal program, that is, to make state
delisting decisions. Therefore, this exclusion does not apply in those
authorized states. If Heritage transports the petitioned waste to or
manages the waste in any state with delisting authorization, Heritage
must obtain a delisting from that state before it can manage the waste
as nonhazardous in the state.

IV. Public Comments Received on the Proposed Exclusion

A. Comments and Responses From EPA

Comment: The DRAS is a more realistic model than any of its
predecessors.
Response: EPA agrees with the comment.
Comment: EPA has stated that it believes the CML model is
appropriate when evaluating whether to delist a waste, and has used the
CML model as recently as the proposed delisting of August 8, 2000 and
the final delisting of May 16, 2000.
Response: Region 5 believes that the delisting risk assessment
software (DRAS) is a more sophisticated and more appropriate model and
is now applying this model to all petitions currently under review.
Comment: The September 27, 2000 and December 5, 2000 Federal
Registers did not indicate that the DRAS has been adopted by all EPA
Regions, nor that it would be used in the future.
Response: At this time all Regions are using the DRAS model.
Comment: The model should be peer reviewed and the public should
have the opportunity to provide adequate and meaningful comment.
Response: The model has been peer reviewed. The public has the
opportunity to submit comments on the DRAS model during the comment
period each time a delisting is proposed which is based on the DRAS
model.
Comment: EPA is continuing to use the model before completing its
own review of comments received. The DRAS may not be appropriate since
it is currently being commented upon & revised.
Response: The Agency is continually striving to improve the tools
available

[[Page 1890]]

for assessing risk. The Agency believes that at this time the DRAS
model is the best available tool for estimating risk. Revisions and
improvements to the model are always possible in the future.
Comment: The DRAS model assumes that the landfill is unlined and
that leaching occurs from the beginning, which is counter to the use of
liners, covers & slurry walls. The assumption of no liner is not
consistent with CMTP which assumes a liner. The DRAS model should allow
for the option of including a liner and should use Subtitle D landfill
characteristics.
Response: There are existing solid waste landfills which have no
liner. Over time, liners may fail and delistings currently have no
expiration date. Therefore it is reasonable to consider scenarios for
liner failure or to assume that no liner exists.
Comment: The DRAS model assumption of minimal cover increases
estimates of volatilization and particulate emissions, which may not be
reasonable.
Response: We must consider the worst case scenario of minimal
requirements for daily cover. Regulations requiring daily cover on
municipal landfills do not necessarily apply to industrial solid waste
landfills.
Comment: The DRAS model is inflexible because site specific factors
like hydrogeology, climate, ecology, and population density cannot be
incorporated. The model should be modified to allow for the input of
site and contaminant specific criteria. State or regional modeling
criteria may be more stringent than the CMTP and have been ignored.
Response: At this time the Agency is not able to consider such site
specific factors. The DRAS model is based on national averages of these
factors and is intended to model a reasonable worst case. A State may
always impose more stringent requirements based on site-specific
factors.
Comment: DRAS is complex and EPA must explain the models and risk
processes used in establishing regulatory limits including the
assumptions, methodologies, pathways and variables used in the DRAS
model.
Response: The DRAS Technical Support Document (DTSD) explains the
risk algorithms used in the model including the methodologies,
variables, pathways and assumptions. The DTSD is available on line at
http://www.epa.gov/earth1r6/6pd/rcra__c/pd-o/dtsd.htm.
Comment: Several assumptions used in the DRAS model are unlikely
and unreasonable: (1) A receptor lives and works at a single location
100 m downgradient and is exposed 350 days/yr; (2) individuals are
exposed to the 90th percentile level for all paths; (3) all media flow
toward the receptor; (4) the landfill volume and conditions from 1987
are still valid; (5) the waste is placed uniformly at great depth over
the whole landfill; (6) only the most sensitive pathway for each
constituent is selected which is an unlikely scenario; (7) first order
decay applies although processes of oxidation, hydrolysis and
biodegredation are not considered separately; (8) transformation rate
may not be reasonable for biological processes; (9) fate and leaching
estimates should include parameter estimates including Kow, pKa,
Henry's Law and potential for biological transformation; (10) all
streams are fishable and representative; and (11) nickel has a fish BCF
of 307 which is unsupported by peer review publications and EPA's own
documents.
Response: (1,2) The DRAS employs standard risk assessment default
parameters that are accepted throughout the Agency in risk analyses
(i.e., residential exposure 350 days/yr, and selection of the 90th
percentile). The Agency has no way of knowing that this situation will
not occur and therefore deems it prudent to protect for this condition
by adding risks. (3) The Agency has no way of knowing the direction of
media flow and must assume that all media flow may move toward the
receptor. (4) The Agency has no data to indicate that the landfill
volume data and other data from the 1987 landfill survey report are not
valid. When updated data are available, they will be incorporated into
the analyses. (5) To maximize the impact of the waste, the model
assumes uniform placement of the waste. (6) The DRAS does employ a
conservative approach to exposure assessment by assuming the receptor
may be exposed to both the most sensitive groundwater pathway and the
most sensitive surface exposure pathway and selects the most sensitive
pathway for each constituent. (7,8) The groundwater fate and transport
model used by the Agency to determine first order decay is EPA's
Composite Model for Leachate Migration with Transformation Products
(CMTP). The information used to develop the first order decay rate for
different chemicals in CMTP is based on studies in which the separate
processes of oxidation, biodegradation and hydrolysis could not be
further isolated. The transformation rates cannot be easily adjusted
because they are based on these empirical studies rather than on
theoretical modeling in which variables can be altered at will. This
model has been peer reviewed and received an excellent review from the
Science Advisory Board (SAB). The Agency will continue to support the
use of EPACMTP until a better assessment tool becomes available. (9)
The Kow and pKa (octonal water partition coefficient and ionization
constant) are not used in the development of leaching estimates because
the DRAS relies on test data from leach testing to estimate the
leaching potential of the waste. The Henry's law constant, although
used in other aspects of the DRAS, is not used in the estimate of
leaching and fate in groundwater. At this time, the CMTP does not
account for volatilization of constituents from the groundwater as it
moves through the subsurface.
(10) EPA assumed that all streams of sufficient size are fishable.
This assumption is conservative, but not unreasonable as the final
landfill location is not known. (11) The bioconcentration factor (BCF)
for nickel has been revised from 307 to 78. The revised nickel BCF will
be incorporated into the upcoming DRAS version 2.0.
Comment: Current science suggests that the skin and respiratory
tract are targets for soluble nickel salts, yet the model literature
states that the critical effects are decreased organ and/or body
weights.
Response: The oral Reference Dose (RfD) is based on the assumption
that thresholds exist for certain toxic effects such as cellular
necrosis. It is expressed in units of mg/kg/day. Ambrose et al. (1976)
reported the results of a 2-year feeding study using rats given 0, 100,
1000 or 2500 ppm nickel (estimated as 0, 5, 50 and 125 mg Ni/kg/day) in
the diet. Clinical signs of toxicity, such as lethargy, ataxia,
irregular breathing, cool body temperature, salivation and discolored
extremities, were seen primarily in the 100 mg/kg/day group; these
signs were less severe in the 35 mg/kg/day group. Based on the results
obtained in this study, the 5 mg/kg/day nickel dose was a no observable
adverse effects level (NOAEL), whereas 35 mg/kg/day was a lowest
observable adverse effects level (LOAEL) for decreased body and organ
weights. For further information, please refer to the Agency's IRIS
database.
Comment: The bioconcentration factor (BCF) of 307 for nickel in
fish is unsupported in EPA's own documents. Literature values are much
less. BCF should not be used for predicting chronic toxicity. Some
organs can regulate internal concentrations. Nickel has a low order of
toxicity. Nickel does not bioaccumulate due to incomplete adsorption
and rapid excretion. It is

[[Page 1891]]

Ni+2 , not the parent, that is persistent and bioavailable
and determines toxicity.
Response: The BCF for nickel has been revised to 78 and will be
incorporated into DRAS version 2.0. This value is based on the
geometric mean of 3 laboratory values (100, 100, 47). The studies used
to derive the BCF for nickel are based on soluble nickel, which is
present as the Ni+2 ion. The nickel concentration in the
waste was assumed to be present as the Ni+2. The assumption
is conservative, but not unreasonable since the nickel from the waste
could be present as the Ni+2 ion at the point of exposure.
Comment: In aquatic environs, much of the nickel is present as both
ionic and stable organic complexes. Hence much of the nickel is
insoluble with minimal bioavailability. Also, soil which contains high
organic matter will adsorb nickel and limit its mobility.
Response: The Agency agrees that some nickel may be insoluble, and
have minimal bioavailability, since its mobility is dependent on the
organic content of the soil. However, in delisting analyses, site
specific characteristics (beyond waste constituent concentration and
volume) are not incorporated into analyses. Default values are given
for many parameters used in risk analyses including the organic content
of fishable waters. The Agency has no way of knowing what streams may
be impacted and, therefore, has established a conservative estimate of
pertinent variables.
Comment: MINTEQA2 has been reported to contain outdated and
inaccurate thermodynamic estimates (e.g., for complexation of metals
like cadmium that are dependent on disolved oxygen content (DOC and
pH). Hence the model may not reasonably estimate speciation and
mobility. EPA should confirm stoichiometry, speciation charge, formula
weight, equilibrium and enthalpy estimates with regard to metal and
organic ligands as risks from metal ion concentrations may be
overestimated.
Response: The Agency continues to review chemical-specific
parameter data. Where appropriate, these data will be incorporated into
the DRAS analyses.
Comment: The model may estimate fate and transport concentrations
that exceed water solubility.
Response: If waste concentration exceeds soil saturation, free form
conditions may occur and the assumptions of the EPACMTP may be
compromised. Therefore, soil saturation values have been incorporated
into DRAS and the program will notify the user if waste concentrations
exceed soil saturation concentrations. Ambient water concentrations may
be influenced by more than chemical solubility (e.g., organic content).
Comment: The use of the NOAEL in Rfd calculations has been
challenged by the SAB. The dose response relationship and the
consistency in response level are not identified. Use of the NOAEL for
regulatory limits is based more on experimental exposure design than on
biological relevance.
Response: The EPA still uses the NOAEL in Rfd. The SAB did not
review the entire DRAS. The EPA risk assessors who peer reviewed the
DRAS did not question the use of the NOAEL in Rfd. Until such time that
the Agency redefines RfD methodology, the delisting program will
continue to determine hazards based on RfDs recommended by EPA's IRIS
database. The Agency continues to use RfDs in delisting determinations
in a manner consistent with EPA risk assessment methodology. The EPA
risk assessors and EPA ORD scientists who have peer reviewed the DRAS
have not questioned the method in which RfDs are employed in the DRAS
analyses.
Comment: Terms should be more clearly defined. Does the term Cw for
waste contamination account for the total mass of contamination in the
waste or only that portion that may enter the aqueous phase and be
transported into the unsaturated zone and/or the leachable portion?
Response: No occurrences of Cw could be found in the DTSD or in the
proposed exclusion. The term Cwaste is used twice in Chapter 4 of the
DTSD to refer both to the total constituent concentration in a solid
matrix in a landfill and to the total constituent concentration in a
liquid in a surface impoundment.
Comment: USEPA cited various regulatory and statutory sections such
as Secs. 261.11(a)(3)(i) thru (xi) describing factors to consider in
listing/delisting waste, but there was very little analysis of those
factors. This prompts the conclusion that the USEPA is arbitrarily
proposing to grant the HES petition.
Response: All criteria in 40 CFR 261.11(a)(3) were considered in
accordance with Sec. 260.22(d). The DRAS program was developed in
consideration of all of the factors presented in 40 CFR 261.11(a)(3).
Consitituent specific toxicology, chemical, and physical data are in
the database used in the DRAS software as are appropriate models for
evaluating migration and exposure. The DRAS is not currently capable of
evaluating degradation products as described in 40 CFR
261.11(a)(3)(iii) through (vi) and the risk posed by degradation
products would typically be evaluated independently. The petitioned
waste, however, did not contain any chemicals which have known
degradation products and therefore this additional analysis was not
necessary. EPA considered plausible types of improper management in
accordance with Sec. 261.11(a)(3)(vii) when it assumed that
contaminants will migrate from the landfill to a receptor well,
uncontrolled erosion of exposed wastes will migrate into a stream, and
long-term absence of daily cover will expose the waste to the
atmosphere. Operating a facility in this manner is considered improper
management as it violates the proper management standards and
requirements promulgated for licensed Subtitle D landfills set forth in
40 CFR parts 257 and 258.
Comment: DRAS does not evaluate important ecological receptors
which may significantly impact the back calculated maximum permissible
waste concentrations derived from DRAS.
Response: The DRAS model does include consideration of ecological
impacts. A complete description of the screening for ecological impact
is in Chapter 4 of the DTSD available on the internet at http://
www.epa.gov/earth1r6/6pd/ rcra--c/pd-o/dtsd.htm.> The maximum observed
lead and zinc in the petitioned waste exceeded the surface water
screening values, indicating the need to examine the possible
ecological impact more closely. The DRAS model does not account for the
fact that some of the constituents in the eroded waste will not be
dissolved. Since water quality criteria used for lead and zinc are
based on dissolved concentrations, the total water concentration
predicted by DRAS was conservative. Using conservative values published
by EPA's Office of Water to convert total water concentrations to
dissolved concentrations (30% for zinc and 20 % for lead), the surface
water quality criteria were not exceeded.
Comment: How does the model distinguish metals that are important
for some animals?
Response: If the commenter is referring to metals as
micronutrients, delisting levels for metals far exceed any
micronutrient levels.
Comment: What criteria determine whether the allowable leachate
concentration is set by the Safe Drinking Water Act (SDWA) Maximum
Contaminant Level (MCL), DRAS calculation, treatment technology or
toxicity characteristic level?
Response: The allowable level is the most conservative of the DRAS

[[Page 1892]]

calculations, a calculation based on the SDWA MCL or the toxicity
characteristic level. The exception to this is the level for arsenic
which is frequently calculated based on the concentration allowed by
the MCL.
Comment: Does EPA policy require that MCL or surface water criteria
be met? Does this policy apply at all downgradient distances or just
those corresponding to the DAF?
Response: Groundwater must meet MCL criteria but not surface water
criteria. The DAF is used to calculate the concentration in the
groundwater at a well a set distance downgradient. This distance was
based on the results of a survey which identified the distance to the
closest drinking water wells located near solid waste landfills
throughout the country.
Comment: Are maximum permissible levels set below background?
Background levels for nickel are approximately 3.3 ppb freshwater; 2.1
ppb groundwater; 4 to 30 mg/kg soil.
Response: The Agency does not usually consider background levels
when establishing delisting levels. The maximum allowable levels of
nickel in the waste and in the TCLP leachate are not less than the
values mentioned in the comment.
Comment: The pH of landfill leachate is generally higher than the
pH of the extraction fluid used in the TCLP which affects the
leachability of the metals.
Response: The leachability of this waste was measured using three
different extraction fluids with pH values of 2.88, 6.5, and 12.0 to
evaluate whether the waste leachability will be affected by the pH of
various environments.
Comment: The duration of leaching 18 minutes or 18 hours may over
or underestimate the leachability of some constituents. TCLP does not
account for variations in time to equilibrium for different species.
The TCLP under predicts the maximum concentation of some anions and
does not account for a variety of processes that can affect leachate
quality, quantity and migration.
Response: It is impossible to determine the optimum time or other
factors necessary to maximize the leaching of each constituent in every
matrix in any environmental condition. A considerable amount of time
and effort went into the development of the TCLP and the Agency
believes that it is a reasonable laboratory test and that the TCLP
results generally correlate well with environmental measurements.
Comment: Does the TCLP account for DOC? DOC in the leachate affects
the mobility of metals in the aquifer.
Response: The TCLP does not account for DOC. However, in performing
the TCLP procedure using alternative extraction fluids, Heritage took
steps to remove dissolved oxygen from the neutral and basic extraction
fluids. See proposed rule, 65 FR 75900, December 5, 2000.
Comment: It may be appropriate for the Agency to consider data from
the SPLP.
Response: The Agency would consider any additional data that the
petitioner chooses to submit. At this time the Agency requires leach
testing for stabilized waste using the TCLP procedure at three
different pHs. The Agency also evaluates data from the multiple
extraction procedure. During the development of the sampling and
analysis plan for a delisting petition, the Agency and petitioner
discuss which analytical methods are appropriate for characterizing the
waste.
Comment: For chemicals not previously modeled with the EPACMTP,
what is the effect of assuming a DAF of 18?
Response: The Dilution Attenuation Factor (DAF) of 18 is a
conservative value determined by the EPACMTP fate and transport model
for the landfill waste management scenario. The DAF of 18 represents
the class of organic chemicals with non-degrading, non-sorbing,
characteristics. When creating a chemical to add to the DRAS chemical
library for use in DRAS analyses, we recommend using a conservative
value.
Comment: What is the effect of using one half detection level or
zero for non detects?
Response: The use of one half the detection level is a compromise
between the use of zero and the use of the detection limit. Using one
half of the detection level protects against inappropriately high
detection levels.
Comment: The model does not account for the uncertainty or
sensitivity estimate. Without a sensitivity analysis it is impossible
to determine if a single pathway or a small number of pathways dominate
the risk estimate. If data for most sensitive parameter is uncertain or
limited, confidence in the result will be poor.
Response: The DRAS provides the forward-calculated risk level and
back-calculated allowable waste concentration for each exposure
pathway. The user is thereby able to determine which pathway or
pathways dominate the estimate of risk for each chemical. These
analyses are currently provided on the Chemical-Specific Results
screen.
Comment: The model determines that ground concentrations and a
theoretical drinking water well that is 90th percentile of all
predicted concentrations from Monte Carlo analysis. What is the
sensitivity of using the 50th percentile on release and risk estimates?
Response: The DRAS assessment always defaults to high-end values
from the 90th percentile. The model was not run using the 50th
percentile, so it is not possible to determine the sensitivity at the
50th percentile.
Comment: Does a hazard index (HI) of greater than one mean that the
waste cannot be delisted, or does it indicate that the model is overly
conservative?
Response: An HI of one does not mean that the waste cannot be
delisted, but a more thorough evaluation of the waste will be
necessary. In cases where the HI of the waste exceeds one, the Agency
will evaluate the target organ for the critical effect of those
chemicals contributing to the total HI. In some cases, the hazards
associated with various chemicals in the waste result from effects to
the same target organ, and are indeed additive. In other cases, the
hazards of different chemicals impact different target organs, and are
not additive, in which case the HI is lowered accordingly. The DRAS
automatically assumes the conservative approach, summing all hazards to
calculate the HI.
Comment: EPA has rationalized the exceedance of its own delisting
program target risk level of 1 x 10-6 by reference to the
cancer risk range of 1 x 10-4 to 1 x 10-6
acceptable in other programs. Although this risk range may be
appropriate in the context of corrective action, it may not be
warranted in the delisting program where the waste is yet to be
generated and placed into the environment.
Response: This risk is within the target risk range in the
delisting program of 1 x 10-4 to 1 x 10-6.
The commentor is referred to chapter 4 of the DRAS DTSD which states
that the target risk range is 1 x 10-4 to 1 x
10-6. Attachment A of the RCRA Delisting Program Guidance
Manual for the Petitioner also states that the target risk range is 1
x 10-4 to 1 x 10-6.
Comment: Definition of the criteria used to determine de minimis
risk levels and risk estimates should be provided. De minimis risk is
usually considered to be a risk of less than 10-6 or 1 in a
million.
Response: The term de minimis risk is used to refer to a risk that
is sufficiently low that it need not be considered. The commentor is
correct that a de minimis risk is usually considered by regulatory
agencies to be a risk at or below 10-6 over a 70 year life
time.

[[Page 1893]]

Comment: Long term variation, waste characterization procedures
used by Heritage, and specific information used in the fate & transport
model are lacking.
Response: Temporal variability and waste characterization
procedures used by Heritage were evaluated. The fate and transport data
used by the delisting risk assessment model is based on national
averages for a reasonable worst case scenario, not on site specific
information.
Comment: It may be more appropriate to set standards using
statistical procedures from empirical data from TCLP analyses rather
than generic risk assessment and fate and transport.
Response: Empirical data is not a reliable predictor of future
risk. We believe that the DRAS model is a more appropriate tool than
empirical data for determining acceptable levels based on risk.
Comment: Is 30,000 cubic yards the untreated or the treated K061?
Will any amount over 30,000 cubic yards be regulated as K061? What
information was provided to determine annual volume?
Response: The proposed delisting is for 30,000 cubic yards of
treated waste. Any treated K061 in excess of 30,000 yds is not
delisted. The Agency accepts the facility's assessment and
certification of data submitted.
Comment: What is a mixing device?
Response: A mixing device is a unit in which mixing occurs.
Comment: Much of the relevant information was confidential business
information, such as what treatment reagents were used or
specifications of a mixing device.
Response: Heritage has claimed information which it submitted on
equipment, reagents, and process as confidential. Heritage believes
that such information in the public domain could be injurious.
Comment: No details were given on and what dust characteristics
were evaluated.
Response: Information on dust characteristics of the treated dust
is provided in section 3.0 of the petition.
Comment: Are the larger particles that are removed in the dropout
chamber ever reintroduced into the EAFD for treatment? Would these
larger particles meet the definition of K061? Are the silos in which
EAFD is accumulated considered accumulation tanks since the exclusion
is only for EAFD that has been treated.
Response: The material in the dropout box is not K061 and is not
reintroduced into the EAFD for treatment. The silos are part of the
production unit and not RCRA regulated tanks. Baghouse silos that are
directly connected via piping to the baghouse are an integral part of
the EAFD emission control system. Furthermore, the waste is accumulated
in the silos for less than 90 days, and the silos are part of the
treatment equipment. The point of generation does not occur until the
treatment is complete and the waste exits the unit. Therefore, the
silos are not accumulation tanks and are not subject to RCRA.
Comment: US EPA should re-evaluate the waste treatment process and
QA criteria to assure variations in the treated EAFD are minimized.
Response: If future verification samples indicate excessive
variations, the waste will be re-evaluated.
Comment: There are no details on the fingerprinting procedures or
the quality control measures used to assure proper and consistent
treatment of the waste.
Response: The sampling strategy addressed the waste exiting the
unit. Fingerprinting would not be appropriate since the waste does not
undergo further treatment after it exits. The quality control measures
are set forth in the sampling and analysis plan. The required
verification sampling is intended to assure that the treated waste
remains within acceptable limits. Verification samples which exceed the
delisting levels set forth in this rule may invalidate this delisting.
Comment: The composite sampling procedure in the initial month may
not be sufficient to describe the variation of metals from different
mixes of scrap steel. No comparison of the variability of the metals is
given. EPA should adopt statistical sampling and analytical procedures
from process and quality control engineering methodology. The limited
amount of sampling does not provide for waste variability.
Response: A statistical approach based on extensive data would be
welcomed in future petitions. Since the K061 dust is generated at a
single facility, the Agency believes that the samples taken represent a
reasonable range of both spacial and temporal varibility. Some
confidential data was submitted demonstrating waste variability at this
site.
Comment: The presence of VOCs, SVOCs and PCBs is considered
unlikely. However, one sample is insufficient to determine the presence
or absence of these compounds. Verification should require that a
limited number of samples be analyzed for these constituents.
Response: Based on an understanding of the process, the Agency
believes that these constituents are not likely to be present in the
waste. Generator knowledge also supports the absence of these
constituents in the waste. In this case, a single sample is considered
sufficient to verify the absence of these compounds.
Comment: The commenter recommends that split samples should be
taken by EPA.
Response: EPA does not sample wastes in support of delisting
petitions. The signed certification is accepted as proof that all
analyses were done properly and the results are reported correctly.
Comment: Listed waste needs to meet technology based LDRs prior to
disposal. The delisting level for lead has been set at 2.4 mg/L TCLP
which is above the LDR standard of .75 mg/L TCLP. Why weren't LDRs
considered in setting the delisting standard?
Response: The proposed exclusion for this waste would be effective
at the point of generation. Since LDRs attach at the point of
generation this waste would not be considered hazardous and therefore
is not subject to LDRs.
Comment: There are no criteria listed for what constitutes a
significant change to the treatment process or a change in the
chemicals used.
Response: A change either to the treatment process or in the
chemicals used is significant if it results in a change in the
composition of the waste.
Comment: In most cases where samples are required to support
decision-making under RCRA, grab samples are required. Samples taken in
support of this petition were composite samples. EPA should explain why
results based on composite sampling were allowed and accepted and why
these samples do not render the decision to grant the HES petition
inappropriate due to inconsistent information.
Response: In the delisting program, composite samples are
preferred, except in the case of volatile constituents. Multiple
composite samples provide a better profile of the waste.
Comment: There should be recognition that a single grab sample
taken by a regulating authority would be sufficient for a determination
of legitimacy of the exclusion. The proposed delisting seems to
indicate that only the monthly sampling done by Heritage could cause
the exclusion to be suspended.
Response: The Agency always has the right to take samples to verify
compliance. Such samples taken by the Agency could provide a basis for
revoking a delisting.
Comment: A more rigorous initial sample was used to characterize
the

[[Page 1894]]

variability for EAFD at USX Steel Corporation in Gary Indiana. Is it
appropriate to have two different standards for USX and Heritage?
Response: All delisting decisions, including the initial sampling
for delisting proposals are site specific. There will be variations.
Comment: In the ANPRM, 65 FR 37932, June 19, 2000, EPA has
reservations about the effectiveness of using stabilization to
immobilize metal wastes. Stabilization has not been scientifically
proven to be reliable over the long term for disposal of such wastes.
Allowing this waste to be placed in general purpose landfills which
have fewer engineered features to prevent leaching and migration of
heavy metals into groundwater ignores sound science. EPA needs to
explain why disposing of a hazardous waste in this less protective
manner should be allowed, absent any evidence confirming that it will
work.
Response: At this time, stabilization is considered to be the best
available treatment for metal bearing wastes. We have no evidence that
constituents of concern have ever leached from this stabilized waste.
To assure that the waste continues to meet the levels established here,
we are requiring periodic testing of the waste and placement of the
waste in a solid waste landfill which has ground water monitoring.
Comment: A similar process used in Ohio has caused concern because
of possible leaching of substances which were supposedly stabilized.
EPA cited Envirosafe Services in Ohio as having high leachate levels of
various metals.
Response: Envirosafe Services in Ohio was not cited by US EPA for
high levels of metals in the leachate. The facility was cited by Ohio
EPA for excessive volume of leachate, although this citation may be
attributed to be an error in measurement. Although the commentor did
not define what constitutes high levels of metals in the leachate, the
leachate must be treated as necessary to meet regulated standards
before disposal. In addition, the concentrations of metals in the
groundwater are monitored and regulated. While EPA may consider the
experiences at other locations, petitioned wastes are evaluated on a
site specific basis. The petitioned waste meets the criteria for
delisting when the levels set forth in the notice are met.
Comment: EPA has concluded that over the long term, the actual
leachate concentrations suggest that significant groundwater
contamination may result after the eventual failure of liner and other
contaminant controls.
Response: The DRAS model calculates risk assuming a worst case
scenario of no liner at all. Under this scenario, the waste can be
delisted.
Comment: An independent engineering expert has warned that the
massive weight of stabilized K061 on the liner could produce hundreds
of high pressure points which will burst and result in leakage of the
liner and seepage of groundwater into and through the cell. The problem
of groundwater leaching out the heavy metals in a Class C landfill
cannot be ignored, but EPA did not analyze it.
Response: Currently a liner is the best available technology for
landfills, regardless of whether it is a hazardous waste landfill
(Subtitle C) or a solid waste landfill (Subtitle D). However, the model
used to assess the risk of a delisted waste assumes that no liner is
present.
Comment: It is scientifically established that lead can actively
affect hydration of the concrete ingredients of the stabilization
process. Lead tends to locate near the surface of cement-like materials
and is easily leached into water. This is a concern in a less-secure
Class C landfill which is not built to withstand the immense weight of
stabilized K061.
Response: There is no evidence that lead has leached from this
waste in the past and therefore we cannot assume that it will do so in
the future. Since the model assumes no liner, the weight of the
stabilized K061 and its possible effect on a liner is not relevant. It
is assumed that the commentor is concerned about disposal in a Subtitle
D landfill, since a Subtitle C landfill which the commentor referred to
is more secure, not less secure as stated in the comment.
Comment: Arsenic and cadmium have been most frequently found in
hazardous concentrations on both a total and dissolved constituent
basis.
Response: Only very low concentrations of these constituents leach
from the petitioned waste in a TCLP analysis. EPA believes that at
these low concentrations, these constituents do not pose a risk.
Comment: EPA has expressed concern over migration of metals from
stabilized waste to groundwater, yet EPA proposed to grant the Heritage
petition without reviewing any groundwater monitoring information. In
fact, Heritage submitted no groundwater monitoring information.
Response: HES has submitted groundwater monitoring data for their
Subtitle C landfill where the waste is currently being disposed. The
data does not indicate the presence of any constituent above health
based levels.

V. Regulatory Impact

Under Executive Order 12866, EPA must conduct an ``assessment of
the potential costs and benefits'' for all ``significant'' regulatory
actions.
The proposal to grant an exclusion is not significant, since its
effect, if promulgated, would be to reduce the overall costs and
economic impact of EPA's hazardous waste management regulations. This
reduction would be achieved by excluding waste generated at a specific
facility from EPA's lists of hazardous wastes, thus enabling a facility
to manage its waste as nonhazardous.
Because there is no additional impact from today's final rule, this
proposal would not be a significant regulation, and no cost/benefit
assessment is required. The Office of Management and Budget (OMB) has
also exempted this rule from the requirement for OMB review under
section (6) of Executive Order 12866.

VI. Congressional Review Act

The Congressional Review Act (5 U.S.C. 801 et seq.) as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of Congress and to the Comptroller General of the United
States. EPA is not required to submit a rule report regarding today's
action under section 801 because this is a rule of particular
applicability. Section 804 exempts from section 801 the following types
of rules: rules of particular applicability; rules relating to agency
management or personnel; and 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)). This rule is not a ``major
rule'' as defined by 5 U.S.C. 804(2). This rule will become effective
on the date of publication in the Federal Register.

VII. Executive Order 12875

Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a state, local,
or tribal government, unless the federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If the mandate is unfunded, EPA must provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected state, local, and tribal
governments, the nature of

[[Page 1895]]

their concerns, copies of written communications from the governments,
and a statement supporting the need to issue the regulation. In
addition, Executive Order 12875 requires EPA to develop an effective
process permitting elected officials and other representatives of
state, local, and tribal governments ``to provide meaningful and timely
input in the development of regulatory proposals containing significant
unfunded mandates.'' Today's rule does not create a mandate on state,
local or tribal governments. The rule does not impose any enforceable
duties on these entities. Accordingly, the requirements of section 1(a)
of Executive Order 12875 do not apply to this rule.

List of Subjects in 40 CFR Part 261

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

Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).

Dated: December 12, 2001.
Gerald Phillips,
Acting Director, Waste, Pesticides and Toxics Division.

For the reasons set out in the preamble, 40 CFR part 261 is amended
as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

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

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

* * * * *

Table 2.--Wastes Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------

* * * * * *
*
Heritage Environmental Services, Crawfordsville, Indiana........... Electric arc furnace dust (EAFD) that
LLC., at the Nucor Steel facility. has been generated by Nucor Steel at
its Crawfordsville, Indiana facility
and treated on site by Heritage
Environmental Services, LLC (Heritage)
at a maximum annual rate of 30,000
cubic yards per year and disposed of in
a Subtitle D landfill which has
groundwater monitoring, after January
15, 2002.
(1) Delisting Levels:
(A) The constituent concentrations
measured in either of the extracts
specified in Paragraph (2) may not
exceed the following levels (mg/L):
Antimony--0.206; Arsenic--0.0936;
Barium--55.7; Beryllium--0.416;
Cadmium--0.15; Chromium (total)--1.55;
Lead--5.0; Mercury--0.149; Nickel--
28.30; Selenium--0.58; Silver--3.84;
Thallium--0.088; Vanadium--21.1; Zinc--
280.0.
(B) Total mercury may not exceed 1 mg/
kg.
(2) Verification Testing: On a monthly
basis, Heritage or Nucor must analyze
two samples of the waste using the TCLP
method, the TCLP procedure with an
extraction fluid of pH 12 ±
0.05 standard units and SW-846 Method
7470 for mercury. The constituent
concentrations measured must be less
than the delisting levels established
in Paragraph (1).
(3) Changes in Operating Conditions: If
Nucor significantly changes the
manufacturing process or chemicals used
in the manufacturing process or
Heritage significantly changes the
treatment process or the chemicals used
in the treatment process, Heritage or
Nucor must notify the EPA of the
changes in writing. Heritage and Nucor
must handle wastes generated after the
process change as hazardous until
Heritage or Nucor has demonstrated that
the wastes continue to meet the
delisting levels set forth in Paragraph
(1) and that no new hazardous
constituents listed in Appendix VIII of
Part 261 have been introduced and
Heritage and Nucor have received
written approval from EPA.
(4) Data Submittals: Heritage must
submit the data obtained through
monthly verification testing or as
required by other conditions of this
rule to U.S. EPA Region 5, Waste
Management Branch (DW-8J), 77 W.
Jackson Blvd., Chicago, IL 60604 by
February 1 of each calendar year for
the prior calendar year. Heritage or
Nucor must compile, summarize, and
maintain on site for a minimum of five
years records of operating conditions
and analytical data. Heritage or Nucor
must make these records available for
inspection. All data must be
accompanied by a signed copy of the
certification statement in 40 CFR
260.22(i)(12).
(5) Reopener Language--(A) If, anytime
after disposal of the delisted waste,
Heritage or Nucor possesses or is
otherwise made aware of any data
(including but not limited to leachate
data or groundwater monitoring data)
relevant to the delisted waste
indicating that any constituent
identified in Paragraph (1) is at a
level in the leachate higher than the
delisting level established in
Paragraph (1), or is at a level in the
groundwater higher than the maximum
allowable point of exposure
concentration predicted by the CMTP
model, then Heritage or Nucor must
report such data, in writing, to the
Regional Administrator within 10 days
of first possessing or being made aware
of that data.
(B) Based on the information described
in paragraph (5)(A) and any other
information received from any source,
the Regional Administrator will make a
preliminary determination as to whether
the reported information requires
Agency action to protect human health
or the environment. Further action may
include suspending, or revoking the
exclusion, or other appropriate
response necessary to protect human
health and the environment.
(C) If the Regional Administrator
determines that the reported
information does require Agency action,
the Regional Administrator will notify
Heritage and Nucor in writing of the
actions the Regional Administrator
believes are necessary to protect human
health and the environment. The notice
shall include a statement of the
proposed action and a statement
providing Heritage and Nucor with an
opportunity to present information as
to why the proposed Agency action is
not necessary or to suggest an
alternative action. Heritage and Nucor
shall have 30 days from the date of the
Regional Administrator's notice to
present the information.

[[Page 1896]]

(D) If after 30 days Heritage or Nucor
presents no further information, the
Regional Administrator will issue a
final written determination describing
the Agency actions that are necessary
to protect human health or the
environment. Any required action
described in the Regional
Administrator's determination shall
become effective immediately, unless
the Regional Administrator provides
otherwise.

* * * * * *
*
----------------------------------------------------------------------------------------------------------------

[FR Doc. 02-953 Filed 1-14-02; 8:45 am]
BILLING CODE 6560-50-P

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

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