[Federal Register Volume 68, Number 117 (Wednesday, June 18, 2003)]
[Proposed Rules]
[Pages 36528-36534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-15361]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-7514-5]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Proposed Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule and request for comment.
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SUMMARY: The Environmental Protection Agency (EPA, also the Agency or
we in this preamble) is proposing to grant a petition submitted by the
Southeastern Public Service Authority (SPSA) and Onyx Environmental
Services (Onyx), to exclude (or delist) on a one-time basis certain
solid wastes generated at the SPSA Power Plant in Portsmouth, Virginia,
from the lists of hazardous waste. This waste is currently located at
the SPSA Regional Landfill in Suffolk, Virginia.
The Agency has tentatively decided to grant the petition based on
an evaluation of specific information provided by the petitioners. This
tentative decision, if finalized, would conditionally exclude the
petitioned waste from the requirements of the hazardous waste
regulations under the Resource Conservation and Recovery Act (RCRA).
The Agency is requesting comments on this proposed decision.
DATES: To make sure we consider your comments on this proposed
exclusion, they must be postmarked by August 4, 2003. Comments received
after the close of the comment period will be designated as late. EPA
is not required to consider late comments.
Any person may request a hearing on this tentative decision to
grant the petition by filing a request by July 3, 2003. The request
must contain the information prescribed in 40 CFR 260.20(d).
ADDRESSES: Please send two copies of your comments to David M.
Friedman, Technical Support Branch (3WC11), Waste and Chemicals
Management Division, U.S. EPA Region III, 1650 Arch Street,
Philadelphia, PA, 19103-2029.
Your request for a hearing should be addressed to James J. Burke,
Director, Waste and Chemicals Management Division (3WC00), U.S. EPA
Region III, 1650 Arch Street, Philadelphia, PA, 19103-2029.
FOR FURTHER INFORMATION CONTACT: For technical information concerning
this document, please contact David M. Friedman at the address above,
at (215) 814-3395, or via e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
Docket
EPA has established an official docket for this action. The
official docket consists of the petition submitted by SPSA/Onyx, the
results of a risk assessment which evaluates the potential impact of
the petitioned waste on human health and the environment, any public
comments received, and other information related to this action. The
official docket for this proposed rule is located at the offices of
U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA, 19103-2029,
and is available for you to view from 8:30 a.m. to 5:00 p.m., Monday
through Friday, except on Federal holidays. Please call David M.
Friedman at (215) 814-3395 for appointments. The public may copy
material from the docket at $0.15 per page.
Outline
The information in this preamble is organized as follows:
I. Background
A. What laws and regulations give EPA the authority to delist
waste?
B. What does SPSA/Onyx request in their petition?
II. Waste-Specific Information
A. How was the waste generated?
B. What information did SPSA/Onyx submit to support their
petition?
III. EPA's Evaluation of the Petition
A. What method did EPA use to evaluate risk?
B. What other factors did EPA consider in its evaluation?
C. What conclusion did EPA reach?
IV. Conditions for Exclusion
A. What conditions are associated with this exclusion?
B. What happens if SPSA or Onyx fails to meet the conditions of
this exclusion?
V. Effect on State Authorization
VI. Effective Date
VII. Administrative Requirements
I. Background
A. What Laws and Regulations Give EPA the Authority To Delist Waste?
EPA published amended lists of hazardous wastes from non-specific
and specific sources on January 16, 1981, as part of its final and
interim final regulations implementing Section 3001 of RCRA. These
lists have been amended several times, and are found at 40 CFR 261.31
and 261.32.
We list these wastes as hazardous because: (1) they typically and
frequently exhibit one or more of the characteristics of hazardous
wastes identified in subpart C of 40 CFR part 261 (i.e., ignitability,
corrosivity, reactivity, and toxicity), or (2) they meet the criteria
for listing contained in 40 CFR 261.11(a)(2) or (a)(3).
We also define residues from the treatment, storage, or disposal of
listed hazardous wastes and mixtures containing listed hazardous wastes
as hazardous wastes. (See 40 CFR 261.3(a)(2)(iv) and (c)(2)(i),
referred to as the ``mixture'' and ``derived-from'' rules,
respectively.)
Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
that is described in these regulations generally is hazardous, a
specific waste from an individual facility that would otherwise meet
the listing description may not be.
For this reason, 40 CFR 260.20 and 260.22 provide an exclusion
procedure which allows a person to demonstrate that a specific listed
waste from a particular generating facility should not be regulated as
a hazardous waste, and should, therefore, be delisted.
According to 40 CFR 260.22(a)(1), in order to have a waste
excluded, a petitioner must first show that the waste generated at its
facility does not meet any of the criteria for which the waste was
listed. The criteria which we use to list wastes are found in 40 CFR
261.11. An explanation of how these criteria apply to a particular
waste is contained in the background document for that listed waste.
In addition to the criteria that we considered when we originally
listed the waste, we are also required by the provisions of 40 CFR
260.22(a)(2) to consider any other factors (including additional
constituents), if there is a reasonable basis to believe that these
factors could cause the waste to be hazardous.
In a delisting petition, the petitioner must demonstrate that the
waste does not exhibit any of the hazardous waste characteristics
defined in subpart C of 40 CFR part 261 (i.e., ignitability,
corrosivity, reactivity, and toxicity), and must present sufficient
information for EPA to determine whether the waste contains any other
constituents at hazardous levels.
[[Page 36529]]
A generator remains obligated under RCRA to confirm that its waste
remains non-hazardous based on the hazardous waste characteristics
defined in subpart C of 40 CFR part 261, even if EPA has delisted its
waste.
B. What Does SPSA/Onyx Request in Their Petition?
On April 7, 2003, SPSA/Onyx petitioned EPA to exclude on a one-time
basis a combustion ash generated at SPSA's waste-to-energy facility in
Portsmouth, Virginia. The ash which is the subject of this petition is
currently located at SPSA's Regional Landfill in Suffolk, Virginia. The
total volume of the subject combustion ash at the SPSA Landfill was
determined by SPSA/Onyx to be 1410 cubic yards.
The ash was produced by the routine combustion of a batch of
municipal and commercial solid waste which was processed in SPSA's
Refuse Derived Fuel (RDF) plant and burned in SPSA's Power Plant in
Portsmouth, Virginia. A small amount of this waste consisted of
materials containing the spent non-halogenated solvent, methyl ethyl
ketone (EPA Hazardous Waste Number F005).
II. Waste-Specific Information
A. How Was the Waste Generated?
In January, 2002, Logan Aluminum, Inc. (Logan) sent a routine
shipment of fourteen drums of hazardous waste generated at the Logan
plant in Russellville, Kentucky, to Onyx's facility in West Carrollton,
Ohio. Logan manufactures aluminum sheet used in making beverage cans.
Its process includes application of an FDA-approved, food-safe coating
by passing sheet aluminum through rollers. The rollers are cleaned
periodically by wiping them with cloth strips using virgin methyl ethyl
ketone (MEK) as the cleaning agent. MEK is the only solvent used by
Logan in this process.
The used wipes are collected in drums along with other materials
including personal protective equipment, excess coating, paper,
cardboard and packing materials. These wipes are classified by the
Kentucky Department for Environmental Protection as spent solvent
wastes.
Onyx Environmental Services is a company that provides a wide range
of environmental services to other companies. These services include
hazardous and non-hazardous waste management.
Logan has a contractual arrangement with Onyx for the
transportation and disposal of hazardous and non-hazardous wastes.
Every two months, Logan ships its wastes to Onyx in 55-gallon drums.
On January 30, 2002, Onyx picked up a shipment of eighty-two drums
from Logan. Fourteen of the drums contained MEK rags used in the roller
cleaning process, and these drums were shipped with a Uniform Hazardous
Waste Manifest. Sixty drums in this shipment contained only non-
hazardous waste and eight others, which were not further involved in
this incident, were also designated as hazardous. All the drums in this
shipment were received at Onyx's West Carrollton facility on February
9, 2002.
In the petition, Onyx asserts that on February 16, 2002, the
fourteen drums containing the used wipes were inadvertently included in
a shipment of eighty-three drums sent under a non-hazardous waste
manifest to Eagle Environmental Services, Inc.'s (Eagle) waste
processing facility in Dorchester, South Carolina. Eagle operates a
facility that processes non-hazardous industrial waste for recycling
and disposal, and is permitted for such activities by the South
Carolina Department of Health and Environmental Control.
Eagle emptied the fourteen drums containing the used wipes and
processed their contents, along with approximately twenty-three drums
of non-hazardous industrial waste, by shredding the combined material
and mixing it with sawdust to absorb any free liquids that may have
been present. On February 22, 2002, the processed material, totaling
47,380 pounds, was shipped in a single container under a non-hazardous
waste manifest to SPSA's RDF plant in Portsmouth, Virginia. Here, this
material was mixed with other non-hazardous solid waste and then burned
in SPSA's Power Plant.
The ash resulting from combustion of this batch of RDF was
delivered to the SPSA Regional Landfill in Suffolk, Virginia, on
February 23, 2002. Following standard procedure, the ash was stockpiled
there for use as daily cover in the Landfill.
According to Onyx, on February 26, 2002, it discovered its error
and notified the Ohio Environmental Protection Agency and Eagle that
the drums had been shipped to Eagle without the required hazardous
waste manifest. On February 27, 2002, Eagle notified Chesapeake Waste
Solutions, the waste broker that had arranged the shipment from Eagle
to SPSA, and Chesapeake Waste Solutions notified SPSA. SPSA then
notified the Virginia Department of Environmental Quality.
Approximately 510 tons (835 cubic yards) of this ash had been used
as daily cover at the SPSA Regional Landfill before SPSA received
notification on February 27, 2002, that the ash was subject to
regulation as a hazardous waste. The remaining ash (about 250 tons or
575 cubic yards) has been segregated and stored on a liner under a
water- and wind-tight cover on an adjacent area of the Landfill. The
area of the Landfill where the material was used as cover is cordoned
off and operations remain suspended in this area.
B. What Information Did SPSA/Onyx Submit To Support Their Petition?
In order to support their petition, SPSA/Onyx submitted detailed
descriptions of the chemicals used and the wastes generated by Logan,
detailed information related to the material shipments received for
destruction at SPSA's Power Plant during the period of time between
receipt of the shipment of material from Eagle and notification of the
shipping error, and validated analytical results from representative
samples of the ash obtained by SPSA/Onyx on October 15, 2002 and
January 28, 2003.
Because of the number and variety of waste streams that were
processed at the SPSA waste-to-energy facility, we requested that SPSA/
Onyx analyze the ash for the entire list of constituents found in
Appendix IX to 40 CFR part 264.
On October 15, 2002, SPSA/Onyx collected eight samples and one
duplicate sample from ash being stored in a segregated waste pile at
the SPSA Regional Landfill. The ash that was used for daily cover in
the Landfill was not sampled. The ash has been homogenized by several
processes such as loading out at the power plant, transportation and
stockpiling, and, therefore, the ash currently stored in the waste pile
(which is lined with a geosynthetic liner and covered with a high-
density polyethylene cap) was determined to be representative of that
portion of the ash which was used as daily cover.
Total analysis was performed on all samples for the entire list of
Appendix IX constituents, which include volatiles, semi-volatiles,
pesticides, herbicides, PCBs, polychlorinated dibenzodioxins (PCDDs),
polychlorinated dibenzofurans (PCDFs) metals, cyanide, and sulfide.
Toxicity Characteristic Leaching Procedure (TCLP) leachate analysis was
performed on all Appendix IX metals. TCLP leachate analysis was not
performed on the organic constituents or cyanide, since allowable
holding times were exceeded, and any results obtained from such samples
may not be reliable. Holding time requirements
[[Page 36530]]
were met, however, for total constituent analysis of the organic
constituents and cyanide. Therefore, in our evaluation of the organic
constituents (except for the PCDDs and PCDFs) and cyanide, we have
calculated the theoretical maximum leachate concentrations by applying
the most conservative assumption.
Analyzing a waste for TCLP constituent concentrations involves
application of the TCLP followed by analysis of the TCLP leachate for
the constituents of concern. For a waste that is a physical solid
(i.e., a waste that does not contain a liquid phase), the maximum
theoretical leachate concentration can be calculated by dividing the
total concentration of the constituent by twenty. This twenty-fold
dilution is part of the TCLP protocol and represents the liquid to
solid ratio employed in the test procedure.
If the TCLP were performed on the actual waste, the concentration
of this constituent in the TCLP leachate could not exceed the
calculated value derived from the procedure described above. The actual
TCLP concentration, if determined, may be substantially less than the
calculated value because the calculated value assumes that 100 percent
of the constituent leaches from the waste.
PCDD and PCDF analysis of the samples collected during the October
15, 2002 sampling event were inadvertently analyzed by SPSA/Onyx's
laboratory using SW-846 Method 8280 rather than the specified method,
SW-846 Method 8290. Method 8280 did not yield results that were
sufficiently sensitive for this evaluation. On January 28, 2003, four
additional composite ash samples were collected and analyzed for total
and leachable PCDDs and PCDFs concentrations using Method 8290.
The maximum total constituent and maximum leachate concentrations
for all detected inorganic constituents in SPSA/Onyx's waste samples
are presented in Table 1.
The detection limits presented in Table 1 represent the lowest
concentrations quantifiable by SPSA/Onyx using appropriate methods to
analyze the waste.
Table 1.--Maximum Total Constituent and Leachate Concentrations \1\ in
Ash
------------------------------------------------------------------------
Total
constituent TCLP leachate
Inorganic constituents concentration concentration
(mg/kg) (mg/1)
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Antimony.............................. 125 0.54
Arsenic............................... 45.9 0.18
Barium................................ 375 0.21
Beryllium............................. 1.7 <0.005
Cadmium............................... 34.9 0.11
Chromium.............................. 808 <0.5
Cobalt................................ 27.3 <0.05
Copper................................ 2830 1.8
Lead.................................. 1650 <0.5
Mercury............................... 6.8 0.003
Nickel................................ 449 0.065
Selenium.............................. 4.6 <0.25
Silver................................ 9.5 <0.5
Thallium.............................. 1.2 <2.0
Tin................................... 149 <0.1
Vanadium.............................. 29.6 0.012
Zinc.................................. 9810 8.5
Cyanide (total........................ 0.28 0.014 \2\
------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent
found in any sample. These levels do not necessarily represent the
specific levels found in any one sample.
\2\ This value is the calculated theoretical maximum leachate
concentration based on the maximum total constituent concentration.
< Denotes that the constituent was not detected at the concentration
specified in the table.
The maximum total constituent and maximum leachate concentrations
for all detected organic constituents in SPSA/Onyx's waste samples are
presented in Table 2.
Table 2.--Maximum Total Constituent and Leachate Concentrations \1\ in
Ash
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Total
constituent TCLP leachate
Organic constituents concentration concentration
(mg/kg) (mg/1)
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Actone................................. 0.058 0.0029 \3\
Aceonitrile............................ <0.31 <0.0155\3\
Bis(2-ethylhexyl)phthlate.............. 2.6 0.13 \3\
Butylbenzylphthalate................... <2.0 <0.1 \3\
DDD.................................... <0.0022 <0.00011 \3\
Endrin aldehyde........................ <0.0022 <0.00011 \3\
Heptachlor............................. <0.002 <0.0001 \3\
Methyl ethyl ketone (2-butanone)....... <0.049 <0.00245 \3\
Methylene chloride..................... 0.0082 0.00014 \3\
[[Page 36531]]
2,3,7,8-TCDD \2\....................... 0.0175 0.00000000017
------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent
found in any sample. These levels do not necessarily represent the
specific levels found in any one sample.
\2\ For risk assessment of PCDDs and PCDFs compounds, toxicity values
are expressed as 2,3,7,8-TCDD equivalents (TEQs).
\3\ This value is the calculated theoretical maximum leachate
concentration based on the maximum total constituent concentration.
< Denotes that the constituent was not detected at the concentration
specified in the table.
EPA requires that petitioners submit signed certifications
affirming the truthfulness, accuracy and completeness of the
information in their delisting petitions (See 40 CFR 260.22(i)(12)).
SPSA and Onyx each submitted signed certifications stating that all
submitted information is true, accurate and complete.
III. EPA's Evaluation of the Petition
A.What Method Did EPA Use To Evaluate Risk?
For this delisting determination, we used information gathered by
SPSA/Onyx to identify plausible exposure routes (i.e., groundwater,
surface water, and air) for hazardous constituents present in the
petitioned waste. Because of its physical form, we determined that
disposal in a RCRA Subtitle D landfill was the most reasonable, worst-
case (least protective) disposal scenario for SPSA/Onyx's petitioned
waste. We then used a fate and transport model to predict the release
of hazardous constituents from the petitioned waste once it is disposed
of, in order to evaluate the potential impact on human health and the
environment. To perform this evaluation, we used a Windows-based
software tool, the Delisting Risk Assessment Software Program (DRAS),
to estimate the potential releases of waste constituents and to predict
the risk associated with those releases. DRAS accomplishes this using
several EPA models including the EPA Composite Model for Leachate
Migration with Transformation Products (EPACMTP) fate and transport
model for estimating groundwater releases. For a detailed description
of the DRAS program and the EPACMPT model, See 65 FR 58015, September
27, 2000. Subsequent revisions to the DRAS program are described in 65
FR 75637 (December 4, 2000). The DRAS program is available on the World
Wide Web at http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dras.htm. The
technical support document for the DRAS program is also available on
the World Wide Web at http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dtsd.htm as well as in the public docket for this proposed rule.
The Agency believes that the EPACMTP fate and transport model
represents a reasonable worst-case scenario for possible groundwater
contamination resulting from disposal of the petitioned waste in a
landfill, and that a reasonable worst-case scenario is appropriate when
evaluating whether a waste should be relieved of the protective
management constraints of the RCRA Subtitle C program. The use of a
reasonable worst-case scenario results in conservative values for the
compliance-point concentrations and insures that the waste, once
removed from hazardous waste regulation, will not pose a significant
threat to human health or the environment.
In assessing potential risks to groundwater, we use the estimated
waste volume and the maximum measured or calculated leachate
concentrations as inputs to the DRAS program to estimate the
constituent concentrations in the groundwater at a hypothetical
receptor well downgradient from the disposal site. Using an established
risk level, the DRAS program can back-calculate receptor well
concentrations (referred to as a compliance-point concentration) using
standard risk assessment algorithms and Agency health-based numbers.
For constituents which are not detected in leachate analysis, the
DRAS requires that the detection limit be entered along with the other
data. In these circumstances, the DRAS uses one-half the detection
limit to calculate risk. We believe it is inappropriate to evaluate
constituents which are not detected in any sample analyzed, if an
appropriate analytical method was used.
Similarly, the DRAS also predicts possible risks associated with
releases of waste constituents through surface pathways (e.g.,
volatilization or wind-blown particulate from the landfill). As in the
groundwater analyses, the DRAS uses the established acceptable risk
level, the health-based data, and standard risk assessment and exposure
algorithms to perform this assessment.
In most cases, because a delisted waste is no longer subject to
hazardous waste regulation, the Agency is generally unable to predict,
and does not presently control, how a petitioner will manage a waste
after it is excluded. Therefore, we believe that it is inappropriate to
consider extensive site-specific factors when applying the fate and
transport model.
The back-calculation procedure contrasts with the method used to
compute the cumulative risk for a one-time delisting petition. To
determine cumulative risk, the calculations proceed in a forward
direction. Beginning with the leachate and total waste concentrations
for each constituent in the waste (source concentrations), the waste
volume and exposure parameters are used to estimate the upper-bound
excess lifetime cancer risks(risk) and noncarcinogenic hazards
(hazard). The risk is said to be cumulative because risks and hazards
are summed separately for receptors (resident adults and children)
across all applicable waste constituents and exposure pathways to
obtain an estimate of the total individual risk and hazard for each
receptor. Risk is the probability that a receptor will develop cancer.
Risk is estimated based on a unique set of exposure, model, and
toxicity assumptions.
Hazard is defined as the potential for noncarcinogenic health
effects as a result of exposure to constituents of concern, averaged
over an exposure period of less than an entire lifetime. A hazard is
not a probability but rather a measure (expressed as a ratio) of the
magnitude of a receptor's potential exposure relative to a standard
exposure level. The standard exposure level is calculated over an
exposure period such that there is no likelihood of adverse health
effects to potential receptors, including sensitive populations.
If a delisting evaluation is performed for a one-time exclusion,
the DRAS computes the cumulative carcinogenic
[[Page 36532]]
risk by summing the carcinogenic risks for all waste constituents for a
given exposure pathway and then summing the carcinogenic risks for each
pathway analyzed in the delisting risk assessment. The DRAS also
computes the cumulative noncarcinogenic risk by summing the Hazard
Quotients for all waste constituents for a given exposure pathway to
obtain exposure pathway-specific Hazard Indexes (HIs), and then summing
the HIs associated with each exposure pathway analyzed. For a one-time
exclusion, the results of the cumulative risk assessment may be used in
lieu of the calculated delisting levels. Since this is a one-time
delisting, we do not need to establish monitoring concentrations for
each batch of waste that is subsequently managed under the exclusion.
Therefore, we set the evaluation levels in the cumulative risk process
at the established target risk range (1 x 10-4 to 1 x
10-6 for carcinogenic waste constituents and a HI of 1.0 to
0.1 for noncarcinogenic waste constituents). Use of the cumulative risk
analysis allows the risk associated with an individual waste
constituent to extend to a less conservative risk level as long as the
cumulative risk for the entire petitioned waste lies below or within
EPA's target risk range.
For calculation of delisting levels for multi-year (batch) waste
generation, EPA Region III generally defines acceptable risk levels as
wastes with an excess cancer risk of no more than 1 x 10-6
and a hazard quotient of no more than 0.1 for individual constituents.
For a one-time delisting, EPA Region III evaluates the cumulative
cancer risk and cumulative hazard index of the petitioned waste. A
cumulative cancer risk less than 1 x 10-4 and a cumulative
hazard index less than or equal to 1 are considered to be protective of
human health and will be considered acceptable for this type of
delisting determination.
B. What Other Factors Did EPA Consider in Its Evaluation?
We also consider the applicability of groundwater monitoring data
during the evaluation of delisting petitions where the petitioned waste
is currently managed or was once managed in a land-based unit (e.g., a
landfill or surface impoundment).
We use the results of groundwater monitoring data evaluations as a
check on the reasonable worst case evaluations performed, in order to
provide an additional level of confidence in our delisting decisions.
Because groundwater monitoring data are descriptive of the impact of
the petitioned waste under actual conditions, and not reasonable worst
case assumptions, we believe that evidence of groundwater contamination
originating from a land-based waste management unit may be sufficient
basis for petition denial.
In this case, SPSA/Onyx has not generated the subject ash until
this recent incident (described earlier in this preamble) which
resulted in a small amount of the ash being used as daily cover in the
SPSA Regional Landfill. We have determined that it would not be helpful
to request groundwater monitoring data since the small amount of ash
used as daily cover would not have a detectable impact on the
groundwater at this Regional Landfill.
C. What Conclusion Did EPA Reach?
EPA believes that the information provided by SPSA/Onyx provides a
reasonable basis to grant SPSA/Onyx's petition. We, therefore, propose
to grant SPSA/Onyx a one-time delisting for the 1410 cubic yards of
petitioned ash currently located at the SPSA Regional Landfill. This
includes both the ash which has been segregated in a waste pile at the
site as well as the ash that has been used as cover material in the
Landfill. The data submitted to support the petition and the Agency's
evaluation show that the constituents in the SPSA/Onyx ash are below
health-based levels used by the Agency for delisting decision-making,
and that the ash does not exhibit any of the characteristics of a
hazardous waste.
For this delisting determination, we used information gathered to
identify plausible exposure routes (i.e., groundwater, surface water,
air) for hazardous constituents present in the petitioned waste. We
determined that disposal in a RCRA Subtitle D landfill is the most
reasonable, worst-case disposal scenario for SPSA/Onyx's petitioned
waste. We applied the DRAS described above to predict the maximum
allowable concentrations of hazardous constituents that may be released
from the petitioned waste after disposal, and we determined the
potential impact of the disposal of SPSA/Onyx's petitioned waste on
human health and the environment.
The estimated total cumulative risk posed by the waste, as
calculated using the DRAS, is 4.1 x 10-5. We believe that
this risk is acceptable both because the value is within the generally
acceptable range of 1 x 10-4 to 1 x 10-6 and, as
stated above, for a one-time delisting, EPA Region III considers a
cumulative cancer risk less than 1 x 10-4 to be protective
of human health.
The estimated cumulative hazard index for this waste is calculated
by DRAS to be 3.2 x 10-1. We likewise believe that this risk
is acceptable both because the value is within the generally acceptable
range of 1.0 to 0.1 and, for a one-time delisting, EPA Region III
considers a cumulative hazard index less than or equal to 1 to be
protective of human health.
We believe the data submitted in support of the petition show that
the waste will not pose a threat when disposed of in a RCRA Subtitle D
landfill. We, therefore, propose to grant SPSA/Onyx's request for a
one-time delisting for the 1410 cubic yards of ash currently located at
the SPSA Regional Landfill.
IV. Conditions for Exclusion
A. What Conditions Are Associated With This Exclusion?
The proposed exclusion would apply only to the estimated 1410 cubic
yards of ash currently located at the SPSA Regional Landfill as
described in SPSA/Onyx's petition. No ash other than the ash described
in this petition could be managed as nonhazardous waste under this
exclusion.
If SPSA and/or Onyx discovers that a condition or assumption
related to the characterization of this waste that was used in the
evaluation of this petition is not as reported in the petition, SPSA
and/or Onyx will be required to report any information relevant to that
condition or assumption in writing to the Regional Administrator and
the Virginia Department of Environmental Quality within 10 calendar
days of discovering that condition.
The purpose of this condition is to require SPSA and/or Onyx to
disclose new or different information that may be pertinent to the
delisting. This provision will allow us to reevaluate the exclusion
based on this new information in order to determine if our original
decision was correct. If we discover such information from any source,
we will act on it as appropriate. Further action may include repealing
the exclusion, modifying the exclusion, or other appropriate action
deemed necessary to protect human health or the environment. EPA has
the authority under RCRA and the Administrative Procedures Act, 5
U.S.C. 551 et seq. (1978), (APA), to reopen the delisting under the
conditions described above.
SPSA/Onyx state in their petition that the waste, if delisted, will
remain at the SPSA Regional Landfill. However, in order to adequately
track wastes that have been delisted, in the event that a decision is
made to dispose of all or part
[[Page 36533]]
of the ash off-site, we will require that SPSA/Onyx provide a one-time
notification to any State regulatory agency to which or through which
the delisted waste will be transported for disposal. SPSA/Onyx will be
required to provide this notification at least 60 calendar days prior
to commencing these activities. Failure to provide such notification
will be a violation of the delisting, and may be grounds for revocation
of the exclusion.
B. What Happens if SPSA or Onyx Fails To Meet the Conditions of This
Exclusion?
If SPSA or Onyx violates the terms and conditions established in
the exclusion, the Agency may start procedures to withdraw the
exclusion, and may initiate enforcement actions.
V. Effect on State Authorizations
This proposed exclusion, if promulgated, would be issued under the
Federal RCRA delisting program. States, however, may impose more
stringent regulatory requirements than EPA 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 (RCRA) or State (non-RCRA)
programs), petitioners are urged to contact State regulatory
authorities to determine the current status of their wastes under the
State laws.
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 proposed exclusion, if
promulgated, may not apply in those authorized States, unless it is
adopted by the State. If the petitioned waste is managed in any State
with delisting authorization, SPSA/Onyx must obtain delisting
authorization from that State before the waste may be managed as
nonhazardous in that State.
VI. Effective Date
EPA is today making a tentative decision to grant SPSA/Onyx's
petition. This proposed rule, if made final, will become effective
immediately upon such final publication. 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, if finalized, would reduce the existing
requirements for a facility generating hazardous wastes. In light of
the unnecessary hardship and expense that would be imposed on this
petitioner by an effective date six months after publication and the
fact that a six-month deadline is not necessary to achieve the purpose
of RCRA Section 3010, EPA believes that this exclusion should be
effective immediately upon final publication. These reasons also
provide a basis for making this rule effective immediately, upon final
publication, under the Administrative Procedures Act, 5 U.S.C. 553(d).
VII. Administrative Requirements
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 particular facility, it is not subject to the regulatory
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601
et seq.), or to sections 202, 203, and 205 of the Unfunded Mandates
Reform Act of 1995 (UMRA) (Pub. L. 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
Indian tribal governments, as specified in Executive Order 13175 (65 FR
67249, November 6, 2000). 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(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272) 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. 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.).
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: June 10, 2003.
Donald S. Welsh,
Regional Administrator, Region III.
For the reasons set forth in the preamble, 40 CFR Part 261 is
proposed to be amended as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for Part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
Appendix IX of Part 261--[Amended]
2. Table 1 of Appendix IX of Part 261 is amended to add the
following waste stream in alphabetical order by facility to read as
follows:
Appendix IX to Part 261--Wastes Excluded Under Sec. Sec. 260.20 and
260.22.
Table 1.--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Southeastern Public Service Authority Suffolk, Virginia.................... Combustion ash generated from
(SPSA) and Onyx Environmental Services the burning of the spent
(Onyx). solvent methyl ethyl ketone
(Hazardous Waste Number F005)
and disposed of in a Subtitle
D landfill. This is a one-time
exclusion for 1410 cubic yards
of ash and is effective after
(insert publication date of
the final rule).
(1) Reopener language
[[Page 36534]]
(a) If SPSA and/or Onyx
discovers that any condition
or assumption related to the
characterization of the
excluded waste which was used
in the evaluation of the
petition or that was predicted
through modeling is not as
reported in the petition, then
SPSA and/or Onyx must report
any information relevant to
that condition or assumption,
in writing, to the Regional
Administrator and the Virginia
Department of Environmental
Quality within 10 calendar
days of discovering that
information. (b) Upon
receiving information
described in paragraph (a) of
this section, regardless of
its source, the Regional
Administrator will determine
whether the reported condition
requires further action.
Further action may include
repealing the exclusion,
modifying the exclusion, or
other appropriate action
deemed necessary to protect
human health or the
environment.
(2) Notification Requirements
In the event that the delisted
waste is transported off-site
for disposal, SPSA/Onyx must
provide a one-time written
notification to any State
Regulatory Agency to which or
through which the delisted
waste described above will be
transported at least 60
calendar days prior to the
commencement of such
activities. Failure to provide
such notification will be
deemed to be a violation of
this exclusion and may result
in revocation of the decision
and other enforcement action.
* * * * * * *
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[FR Doc. 03-15361 Filed 6-17-03; 8:45 am]
BILLING CODE 6560-50-P