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 1896-1899]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ja02-6]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-7124-9]

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 petition submitted by USG Corporation (USG), Chicago,
Illinois, to exclude (or ``delist''), on a one-time basis, certain
solid wastes that are interred at an on-site landfill at its American
Metals Corporation (AMC) facility in Westlake, Ohio from the lists of
hazardous wastes. This landfill was used exclusively by Donn
Corporation, the original site owner, for disposal of its wastewater
treatment plant (WWTP) sludge from 1968 to 1978.
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. USG's Delisting Petition
A. What Waste Did USG Petition EPA to Delist?
B. What Information Must the Petitioner Supply?
C. What Information Did USG 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. Response to Public Comments Received on the Proposed Exclusion
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 a petitioner 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 EPA to decide whether factors other
than those for which the waste was listed warrant retaining it as a
hazardous waste.
Petitioners remain obligated under RCRA to confirm that their waste
remains nonhazardous based on the hazardous waste characteristics even
if EPA has ``delisted'' the wastes.

B. What Regulations Allow a Waste To Be Delisted?

Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to
remove their wastes from hazardous waste control by excluding it from
the lists of hazardous wastes contained in Secs. 261.31 and 261.32.
Specifically, Sec. 260.20 allows any person to petition the
Administrator to modify or revoke any provision of parts 260 through
266, 268, and 273 of Title 40 of the Code of Federal Regulations.
Section 260.22 provides any person with the opportunity to petition the
Administrator to exclude a waste at a particular generating facility
from the hazardous waste lists.

II. USG's Delisting Petition

A. What Waste Did USG Petition EPA To Delist?

On May 22,1997, USG petitioned EPA to exclude 12,400 cubic yards of
previously disposed WWTP sludge from the list of hazardous wastes
contained in 40 CFR 261.31. The WWTP sludge is a mixture of EPA
Hazardous Waste Number F019 wastewater treatment sludge from the
conversion coating of aluminum and other nonhazardous wastes.

B. What Information Must the Petitioner Supply?

A petitioner 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 Administrator must determine that such
factors do not warrant retaining the waste as hazardous.

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

To support its petition, USG submitted (1) descriptions and
schematic diagrams of its manufacturing and wastewater treatment
processes, including historical information on past

[[Page 1897]]

waste generation and management practices; (2) detailed chemical and
physical analysis of the landfilled sludge; and (3) environmental
monitoring data from recent studies of the facility, including
groundwater data from wells located in and around the on-site landfill.

III. EPA's Evaluation and Final Rule

A. What Decision Is EPA Finalizing and Why?

Today the EPA is finalizing an exclusion to USG for 12,400 cubic
yards of WWTP sludge interred at the AMC facility in Westlake, Ohio.
USG petitioned EPA to exclude, or delist, the WWTP sludge because
USG believes that the petitioned waste does not meet the RCRA criteria
for which it was listed it 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 September 27, 2000, EPA proposed to exclude or delist USG's WWTP
sludge from the list of hazardous wastes in 40 CFR 261.31 and accepted
public comment on the proposed rule (65 FR 58015). EPA considered all
comments received, and for reasons stated in both the proposal and this
document, we believe that USG's waste should be excluded from hazardous
waste control.

B. What Are the Terms of This Exclusion?

USG must dispose of the estimated total landfill volume of the WWTP
sludge, 12,400 cubic yards, in a Subtitle D landfill which is
permitted, licensed, or registered by a state to manage industrial
waste. Any amount exceeding this volume is not considered delisted
under this exclusion. This exclusion is effective only if all
conditions contained in today's rule are satisfied. This rule does not
change the regulatory status of the landfill in Westlake, Ohio where
the waste currently resides.

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 EPA
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, EPA urges the petitioner
to contact the state regulatory authority to establish the status of
its 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 USG transports the petitioned waste to or manages
the waste in any state with delisting authorization, USG must obtain a
delisting from that state before it can manage the waste as
nonhazardous in the state.

IV. Response to Public Comments Received on the Proposed Exclusion

Comment: The commenter stated that although the Agency reviewed and
commented on the DRAS model, the public has not had the opportunity to
do so.
Response: The proposed rule of September 27, 2000 discussed the
DRAS model. The comment period provided an opportunity to comment on
the DRAS model itself as well as its use in this proposed delisting.
Each proposed delisting must explicitly reference the risk model used.
Therefore, comments on the DRAS may always be submitted during the
comment period for any future delisting for which the DRAS was used.
Also, for comments on future delistings which used the DRAS model, the
technical support document for the DRAS model may be accessed on-line
at http://www.epa.gov/earth1r6/6pd/rcra__c/pd-o/dtsd.htm>.
Comment: It is not clear the Agency intends to use this model and
that all Regions will be using this methodology to evaluate all
delisting petitions in the future.
Response: At this time the Agency anticipates that the DRAS model
will become the standard tool for evaluating future delisting petitions
although there is no regulation requiring the use of this model. For
each petition, each Region will select the risk model it considers to
be the most appropriate.
Comment: It is inappropriate for the DRAS model to incorporate
elements of the not yet finalized Hazardous Waste Identification Rule
(HWIR) model.
Response: The risk assessment procedure performed by the DRAS model
has been reviewed by the Science Advisory Board as well as by EPA's
Office of Research and Development. Finalizing HWIR will not impact the
use of this model in delisting decisions.
Comment: Why were several additional exposure pathways added to the
delisting evaluation?
Response: Most of the exposure pathways used in this delisting
evaluation have been used in previous delisting evaluations. The
expanded list of exposure pathways is consistent with the exposure
pathways used by the Agency in recent listing determinations as well as
in the proposed HWIR.
Comment: The detection level for 2,3,4,7,8-PeCDF in Table 1 is
higher than the target risk level for this compound although detection
levels in the most recent analysis are much lower.
Response: The highest detection level in any sample is displayed in
the table, however EPA relied on the actual quantitative results from
the more recent and more sensitive analysis in evaluating the
petitioned waste.
Comment: The petitioner requested that the calculation of the risk
factor for 2,3,4,7,8-PeCDF be verified because it was comparable to
2,3,7,8-TCDD which is known to be more toxic.
Response: Although, 2,3,4,7,8-PeCDF is less toxic, it is more
bioaccumulative in fish tissue so that its lower toxicity is offset by
increased exposure.
Comment: The petitioner requested clarification on how non-detects
are treated when determining delistable levels for dioxins and furans.
Response: Non-detects are not evaluated or included if the sample
was analyzed by a method sufficiently sensitive to detect the
constituent at the level of concern.
Comment: The commenter expressed concern that DAF scaling factors
were

[[Page 1898]]

not linearly related to waste volumes at annual waste volumes less than
20,000 cubic yards, while the proposed exclusion implied the
relationship was linear.
Response: The commenter is correct in that the DAF scaling factors
are not linearly related to annual waste volume for volumes less than
20,000 cubic yards. The relationship is approximated by EPA as an
exponential function. References to linearity and DAF scaling factors
in the proposed rule were misleading. The DAF scaling factors of one
constituent are assumed to be directly proportional to DAF scaling
factors of other constituents, not linearly related to volume.
Additional corrections to the proposed exclusion:
The delisting factors for dioxin and furan congeners in the
proposed rule have been corrected to reflect the increased rate of fish
ingestion attributed to high-risk subpopulations in Region 5, as
intended in the proposed exclusion. The correct congener-specific
factors are as follows: 2,3,7,8-TCDD - 7.46 x 10-2;
1,2,3,7,8-PeCDD - 7.18 x 10-2; 1,2,3,4,7,8-HxCDD - 2.41
x 10-3; 1,2,3,6,7,8-HxCDD -9.82 x 10-4;
1,2,3,7,8,9-HxCDD -1.09 x 10-3; 1,2,3,4,6,7,8-HpCDD - 4.20
x 10-5; OCDD -1.01 x 10-7; 2,3,7,8-TCDF -5.08
x 10-3; 1,2,3,7,8-PeCDF - 8.17 x 10-4;
2,3,4,7,8-PeCDF -5.97 x 10-2; 1,2,3,4,7,8-HxCDF -5.97 x
10-4; 1,2,3,6,7,8-HxCDF -1.46 x 10-3;
2,3,4,6,7,8-HxCDF -4.90 x 10-3; 1,2,3,7,8,9-HxCDF -5.30
x 10-3; 1,2,3,4,6,7,8-HpCDF - 8.78 x 10-6;
1,2,3,4,7,8,9-HpCDF -3.11 x 10-4; and OCDF -1.35 x
10-7.
The congener specific factors multiplied by the congener
concentration in the waste provide the individual risk posed by each
congener. The sum of these risks must not exceed the target risk level
of 1 x 10-6.

V. Regulatory Impact

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a rule of general applicability and therefore is not a
``regulatory action'' subject to review by the Office of Management and
Budget. Because this action is a rule of particular applicability
relating to a facility, it is not subject to the regulatory flexibility
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or
to sections 202, 204, and 205 of the Unfunded Mandates Reform Act of
1995 (UMRA) (Public Law 104-4). Because the rule will affect only one
facility, it will not significantly or uniquely affect small
governments, as specified in section 203 of UMRA, or communities of
tribal governments, as specified in Executive Order 13084 (63 FR 27655,
May 10, 1998). For the same reason, this rule will not have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also
is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997),
because it is not economically significant.
This rule does not involve technical standards; thus, the
requirements of section 12(c) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996),
in issuing this rule, EPA has taken the necessary steps to eliminate
drafting errors and ambiguity, minimize potential litigation, and
provide a clear legal standard for affected conduct. EPA has complied
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining
the takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.
This rule does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).

VI. Congressional Review Act

The Congressional Review Act (5 U.S.C. 801 et seq.) as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of Congress and to the Comptroller General of the United
States. EPA 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 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: October 26, 2001.
Robert Springer,
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 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--Wastes Excluded Under Secs. 260.20 and 260.22.

[[Page 1899]]

Table 1.--Wastes Excluded From Non-Specific Sources
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Facility Address Waste description
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* * * * * *
*
American Metals Corporation....... Westlake, Ohio.................... Wastewater treatment plant (WWTP)
sludges from the chemical conversion
coating (phosphating) of aluminum (EPA
Hazardous Waste No. F019) and other
solid wastes previously disposed in an
on-site landfill. This is a one-time
exclusion for 12,400 cubic yards of
landfilled WWTP sludge. This exclusion
is effective on January 15, 2002.
1. Delisting Levels:
(A) The constituent concentrations
measured in the TCLP extract may not
exceed the following levels (mg/L):
antimony--1.52; arsenic--0.691; barium--
100; beryllium--3.07; cadmium--1;
chromium--5; cobalt--166; copper--
67,300; lead--5; mercury--0.2; nickel--
209; selenium--1; silver--5; thallium--
0.65; tin--1,660; vanadium--156; and
zinc--2,070.
(B) The total constituent concentrations
in any sample may not exceed the
following levels (mg/kg): arsenic--
9,280; mercury--94; and polychlorinated
biphenyls--0.265.
(C) Concentrations of dioxin and furan
congeners cannot exceed values which
would result in a cancer risk greater
than or equal to 10-6 as predicted by
the model.
2. Verification Sampling--USG shall
collect six additional vertically
composited samples of sludge from
locations that compliment historical
data and shall analyze the samples by
TCLP for metals including antimony,
arsenic, barium, beryllium, cadmium,
chromium, lead, mercury, nickel,
selenium, silver, thallium, tin,
vanadium, and zinc. If the samples
exceed the levels in Condition (1)(a),
USG must notify EPA. The corresponding
sludge and all sludge yet to be
disposed remains hazardous until USG
has demonstrated by additional sampling
that all constituents of concern are
below the levels set forth in condition
1.
3. Reopener Language--(a) If, anytime
after disposal of the delisted waste,
USG possesses or is otherwise made
aware of any data (including but not
limited to leachate data or groundwater
monitoring data) or any other data
relevant to the delisted waste
indicating that any constituent
identified in Condition (1) is at a
level higher than the delisting level
established in Condition (1), or is at
a level in the groundwater exceeding
maximum allowable point of exposure
concentration referenced by the model,
then USG 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 (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
USG 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 USG
with an opportunity to present
information as to why the proposed
Agency action is not necessary or to
suggest an alternative action. USG
shall have 10 days from the date of the
Regional Administrator's notice to
present the information.
(d) If after 10 days USG 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.
4. Notifications--USG must provide a one-
time written notification to any State
Regulatory Agency to which or through
which the waste described above will be
transported for disposal at least 60
days prior to the commencement of such
activities. Failure to provide such a
notification will result in a violation
of the delisting petition and a
possible revocation of the decision.

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[FR Doc. 02-955 Filed 1-14-02; 8:45 am]
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