Hazardous waste: Identification and listing— Exclusions,

[Federal Register: April 6, 1999 (Volume 64, Number 65)]

[Rules and Regulations]

[Page 16643-16647]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr06ap99-15]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-6320-4]

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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

SUMMARY: The Environmental Protection Agency (EPA) today is granting a petition submitted by Aluminum Company of America (Alcoa), Pittsburgh, Pennsylvania, to exclude (or ``delist'') certain solid wastes generated by its wastewater treatment plant from the lists of hazardous wastes contained in subpart D of 40 CFR part 261. EPA has concluded that the petitioned waste is not a hazardous waste when disposed of in a subtitle D landfill. This exclusion applies only to the 16,772 cubic yards of wastewater treatment plant (WWTP) sludge present in the Stolle landfill. Today's action conditionally excludes the petitioned waste from the

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requirements of the hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA) only if the waste remains in place or, if excavated, it is disposed of in a subtitle D landfill which is permitted, licensed, or registered by a State to manage industrial solid waste.

EFFECTIVE DATE: April 6, 1999.

ADDRESSES: The RCRA regulatory docket for this proposed 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 Peter Ramanauskas at (312) 886-7890 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 Peter Ramanauskas at the address above or at (312) 886-7890.

SUPPLEMENTARY INFORMATION:

  1. Background

    1. Authority

      Under Secs. 260.20 and 260.22, facilities may petition the EPA to remove their wastes from hazardous waste control by excluding them from the lists of hazardous wastes contained in subpart D of part 261. 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, and under Sec. 260.22, which specifically provides generators the opportunity to petition the Administrator to exclude a waste on a ``generator-specific'' basis from the hazardous waste lists. Petitioners must provide sufficient information to allow EPA to determine that the waste to be excluded does not meet any of the criteria under which the waste was listed as a hazardous waste. In addition, where there is reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, the Administrator must determine that such factors do not warrant retaining the waste as a hazardous waste.

    2. History of This Rulemaking

      Alcoa petitioned EPA to exclude its WWTP sludge from hazardous waste control. After evaluating the petition, on December 21, 1998, EPA proposed to exclude Alcoa's waste from the lists of hazardous wastes in subpart D of part 261 (see 63 FR 70360). This rulemaking addresses the public comments received on the proposal and finalizes the proposed decision to grant Alcoa's petition.

  2. Disposition of Delisting Petition

    Aluminum Company of America, Alcoa Corporate Center, 201 Isabella Street, Pittsburgh, Pennsylvania 15212-5858

    1. Proposed Exclusion

      Alcoa petitioned EPA to exclude the estimated total volume of 16,772 cubic yards of WWTP filter press sludge previously disposed of in the Stolle landfill from the list of hazardous wastes contained in Sec. 261.31 because it believed that the petitioned waste did not meet any of the criteria under which the waste was listed and that there were no additional constituents or factors that could cause the waste to be hazardous. Subsequently, Alcoa provided additional information to complete its petition. The WWTP filter cake sludge is listed as EPA Hazardous Waste Numbers F006 and F019. The listed constituents of concern for EPA Hazardous Waste Number F006 are cadmium, hexavalent chromium, nickel and cyanide (complexed) and for EPA Hazardous Waste Number F019 are hexavalent chromium and cyanide (complexed) (see appendix VII of part 261).

      In support of its petition, Alcoa submitted detailed descriptions of its manufacturing and wastewater treatment processes, a schematic diagram of the wastewater treatment process, and analytical testing results for representative samples of the petitioned waste, including (1) the hazardous characteristics of ignitability, corrosivity, and reactivity; (2) total oil and grease; (3) Toxicity Characteristic Leaching Procedure (TCLP, SW-846 Method 1311) analyses for volatile and semi-volatile organic compounds, herbicides, pesticides, polychlorinated biphenyls (PCBs), metals, fluoride, and cyanide (using deionized water instead of acid); (4) total sulfide, total cyanide and total fluoride; and (5) total constituent analysis for 40 CFR part 264, appendix IX metals (plus hexavalent chromium for which F006 and F019 wastes are listed), VOCs, SVOCs, pesticides and herbicides, and PCBs.

      EPA evaluated the information and analytical data provided by Alcoa and tentatively determined that Alcoa had successfully demonstrated that the petitioned waste is not hazardous. See the proposed exclusion (63 FR 70360; December 21, 1998) for a detailed explanation of EPA's evaluation.

    2. Response to Comments

      EPA received a public comment on the December 21, 1998 proposal from Chemical Products Corporation.

      Comment: Commenter noted the absence of any published revision of the Toxicity Characteristic regulatory limit for barium, as the level for barium in the proposed exclusion exceeds the regulatory limit for barium in the Toxicity Characteristic (TC) Rule.

      Response: The regulatory limit for barium under the TC rule has not been changed. The level of regulatory concern in the proposed rule was calculated using the EPA Composite Model for Landfills (EPACML). This level for barium, although protective of human health and the environment, has been lowered in today's final rule to comply with the levels set by the toxicity characteristic in Sec. 261.24.

    3. Changes to Proposed Conditions

      In the proposed rulemaking, EPA included delisting levels for 12 constituents which would be protective of human health and the environment and which could not be exceeded in a TCLP extract of the petitioned waste. The proposed levels of 200 mg/l for barium and 10 mg/ l for chromium have been lowered to the hazardous waste TC levels of 100 mg/l for barium and 5 mg/l for chromium to ensure that the petitioned waste, even though protective of human health and the environment, remains below the TC levels.

      Levels in the proposed rule were based on ``Docket Report on Health-Based Levels and Solubilities Used in the Evaluation of Delisting Petitions,'' December 1994. This document was revised in May, 1996, and the health based levels for copper and vanadium were changed from 1.4 mg/l to 1.3 mg/l for copper and from 0.2 mg/l to 0.3 mg/l for vanadium. These new values were multiplied by the dilution/attenuation factor (DAF) generated using the EPACML to calculate the allowable constituent concentration levels.

      In today's final rule, the allowable constituent concentrations measured in the TCLP extract may not exceed the following levels (mg/ l): Arsenic--5; Barium--100; Chromium--5; Cobalt--210; Copper--130; Nickel--70; Vanadium--30; Zinc--1000; Fluoride--400; Acetone--400; Methylene Chloride--0.5; Bis(2-ethylhexyl)phthalate--0.6.

    4. Final Agency Decision

      For the reasons stated in both the proposal and this document, EPA has concluded that Alcoa's petitioned waste

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      may be excluded from hazardous waste control. EPA, therefore, is granting a final exclusion for the WWTP sludge. This exclusion applies to the waste described in the petition only if the requirements described in Table 1 of part 261, appendix IX are satisfied.

      Although management of the waste covered by this exclusion is removed from subtitle C jurisdiction, this exclusion applies only if the waste remains in place or, if excavated, is disposed of in a subtitle D landfill which is permitted, licensed, or registered by a state to manage industrial solid waste.

  3. Limited Effect of Federal Exclusion

    The final exclusion being granted today is issued under the Federal (RCRA) delisting program. States, however, are allowed to impose (non- RCRA) regulatory requirements that are more stringent than EPA's, pursuant to section 3009 of RCRA. These more stringent requirements may include a provision which prohibits a Federally-issued exclusion from taking effect in the State. Because a petitioner's waste may be regulated under a dual system (i.e., both Federal (RCRA) and State (non-RCRA) programs), petitioners are urged to contact the State regulatory authority to determine the current status of their waste under State law.

    Furthermore, some States are authorized to administer a delisting program in lieu of the Federal program (i.e., to make their own delisting decisions). Therefore, this exclusion does not apply in those authorized States. If the petitioned waste will be transported to any State with delisting authorization, Alcoa must obtain delisting authorization from that State before the waste may be managed as nonhazardous in the State.

  4. Effective Date

    This rule is effective April 6, 1999. 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. That is the case here, because this rule reduces the existing requirements for persons generating hazardous wastes. These reasons also provide a basis for making this rule effective immediately, upon publication, under the Administrative Procedure Act, 5 U.S.C. 553(d).

  5. Regulatory Impact

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the Agency must determine whether the regulatory action is ``significant'' and therefore subject to OMB review and the requirements of the Executive Order. The Order defines ``significant regulatory action'' as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect, in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof, or; (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

    It has been determined that this rule is not a ``significant regulatory action'' under the terms of Executive Order 12866 and is therefore not subject to OMB review.

  6. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612, whenever an agency is required to publish a general notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the impact of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). No regulatory flexibility analysis is required, however, if the Administrator or delegated representative certifies that the rule will not have any impact on any small entities.

    This rule will not have an adverse economic impact on any small entities since its effect would be to reduce the overall costs of EPA's hazardous waste regulations. Accordingly, I hereby certify that this regulation will not have a significant economic impact on a substantial number of small entities. This regulation, therefore, does not require a regulatory flexibility analysis.

  7. Paperwork Reduction Act

    Information collection and recordkeeping requirements associated with this final rule have been approved by OMB under the provisions of the Paperwork Reduction Act of 1980 (Public Law 96-511, 44 U.S.C. 3501 et seq.) and have been assigned OMB Control Number 2050-0053.

  8. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, which was signed into law on March 22, 1995, EPA generally must prepare a written statement for rules with Federal mandates that may result in estimated costs to State, local, and tribal governments in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is required for EPA rules, under section 205 of the UMRA, EPA must identify and consider alternatives, including the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. EPA must select that alternative, unless the Administrator explains in the final rule why it was not selected or it is inconsistent with law. Before EPA establishes regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must develop under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, giving them meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising them on compliance with the regulatory requirements. The UMRA generally defines a Federal mandate for regulatory purposes as one that imposes an enforceable duty upon State, local or tribal governments or the private sector. EPA finds that today's delisting decision is deregulatory in nature and does not impose any enforceable duty upon State, local or tribal governments or the private sector. In addition, today's delisting decision does not establish any regulatory requirements for small governments and so does not require a small government agency plan under UMRA section 203.

  9. Submission to Congress and General Accounting Office

    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

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    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).

  10. Executive Order 13045--Protection of Children From Environmental Health Risks and Safety Risks

    The E.O. 13045 is entitled ``Protection of Children from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997). This order applies to any rule that EPA determines: (1) is economically significant as defined under Executive Order 12866, and (2) the environmental health or safety risk addressed by the rule has a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This final rule is not subject to E.O. 13045 because this is not an economically significant regulatory action as defined by E.O. 12866.

  11. Executive Order 12875

    Under E.O. 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, E.O. 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 E.O. 12875 do not apply to this rule.

  12. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If the mandate is unfunded, EPA must provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, E.O. 13084 requires EPA to develop an effective process permitting representatives of Indian tribal governments ``to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.'' Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of E.O. 13084 do not apply to this rule.

  13. The National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

    This rulemaking does not establish any new technical standards and thus, the Agency has no need to consider the use of voluntary consensus standards in developing this final rule.

    List of Subjects in 40 CFR Part 261

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

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

    Dated: March 16, 1999. 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 16647]]

      Table 1.--Wastes Excluded From Non-Specific Sources

      Facility

      Address

      Waste description

      Aluminum Company of America... 750 Norcold Ave., Wastewater treatment Sidney, Ohio plant (WWTP) sludges 45365.

      generated from the chemical conversion coating of aluminum (EPA Hazardous Waste No. F019) and WWTP sludges generated from electroplating operations (EPA Hazardous Waste No. F006) and stored in an on-site landfill. This is an exclusion for approximately 16,772 cubic yards of landfilled WWTP filter cake. This exclusion applies only if the waste filter cake remains in place or, if excavated, is disposed of in a Subtitle D landfill which is permitted, licensed, or registered by a state to manage industrial solid waste. This exclusion was published on April 6, 1999. 1. The constituent concentrations measured in the TCLP extract may not exceed the following levels (mg/L): Arsenic--5; Barium-- 100; Chromium--5; Cobalt--210; Copper-- 130; Nickel--70; Vanadium--30; Zinc-- 1000; Fluoride--400; Acetone--400; Methylene Chloride-- 0.5; Bis(2- ethylhexyl)phthalate -0.6. 2. (a) If, anytime after disposal of the delisted waste, Alcoa possesses or is otherwise made aware of any environmental data (including but not limited to leachate data or groundwater monitoring data) or any other data relevant to the delisted waste indicating that any constituent identified in Condition (1) is at a level in the leachate higher than the delisting level established in Condition (1), or is at a level in the ground water or soil higher than the health based level, then Alcoa 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 this 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 the facility 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 the facility with an opportunity to present information as to why the proposed Agency action is not necessary or to suggest an alternative action. The facility shall have 10 days from the date of the Regional Administrator's notice to present such information. (d) Following the receipt of information from the facility described in paragraph (c) or (if no information is presented under paragraph (c) the initial receipt of information described in paragraph (a), 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.

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      [FR Doc. 99-8480Filed4-5-99; 8:45 am]

      BILLING CODE 6560-50-P

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