[Federal Register: August 7, 2003 (Volume 68, Number 152)]
[Rules and Regulations]
[Page 46951-46957]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07au03-8]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-7541-7]
Hazardous Waste Management System; Exclusion for Identifying and
Listing Hazardous Waste and a Determination of Equivalent Treatment;
Final Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is granting two
petitions submitted by the University of California--E.O. Lawrence
Berkeley National Laboratory (LBNL). First, EPA is granting the
petition to exclude (or ``delist'') its F002, F003, and F005 mixed
waste. Second, EPA is granting LBNL's petition which is for a
determination of equivalent treatment (DET) for the catalytic chemical
oxidation (CCO) technology that LBNL used to treat its original mixed
waste.
After careful analysis EPA has concluded that the petitioned waste
is no longer hazardous waste and that the CCO treatment is equivalent
to combustion. This exclusion applies to approximately 200 U.S. gallons
of residues from treatment of low-level mixed waste from the National
Tritium Labeling Facility (NTLF), a research facility located within
LBNL. Accordingly, this final rule excludes the petitioned waste from
the requirements of hazardous waste regulations under the Resource
Conservation and Recovery Act (RCRA) provided the petitioner meets the
delisting conditions which require that the residue be disposed at an
authorized low-level radioactive waste facility.
EFFECTIVE DATE: August 7, 2003.
ADDRESSES: The public docket for this final rule is located at the U.S.
Environmental Protection Agency Region 9 RCRA Records Center, 75
Hawthorne Street, San Francisco, CA 94105, and is available for viewing
from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal
holidays. The docket contains the petition, all information submitted
by the petitioner, and all information used by EPA to evaluate the
petition. Call the EPA Region 9 RCRA Records Center at (415) 947-4596
for appointments. The public may copy material from the regulatory
docket at $0.15 per page.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at 800-424-9346. For technical information on specific
aspects of these petitions, contact Cheryl Nelson at the address above
or at 415-972-3291, e-mail address: nelson.cheryl@epa.gov.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What Rule Is EPA Finalizing?
B. Why Is EPA Approving These Petitions?
C. What Are the Limits of This Exclusion?
D. How Will LBNL Manage the Waste?
E. When Is the Final Rule Effective?
F. How Does This Final Rule Affect States?
II. Background
A. What Is a Delisting Petition?
B. What Regulations Allow Facilities To Delist a Waste?
C. What Information Must the Generator Supply for a Delisting
Petition?
D. What Is a Demonstration of Equivalent Treatment?
E. What Regulations Allow Facilities To Request a Demonstration
of Equivalent Treatment?
F. What Information Must the Generator Supply for a
Demonstration of Equivalent Treatment Petition?
III. EPA's Evaluation of the Waste Information and Data
A. What Waste Did LBNL Petition EPA To Delist?
B. How Did LBNL Sample and Analyze the Waste in the Petitions?
IV. Public Comments Received on the Proposed Rule
A. Who Submitted Comments on the Proposed Rule?
B. What Did the Supportive Comments Say?
C. What Were the Non-Supportive Comments and EPA's Responses?
V. Administrative Requirements
I. Overview Information
A. What Rule Is EPA Finalizing?
After evaluating the petitions, EPA proposed, on July 31, 2002, to
exclude the Lawrence Berkeley National Laboratory (LBNL) waste from the
lists of hazardous waste under 40 CFR 261.31 and 261.32, and to grant
the Demonstration of Equivalent Treatment (DET) for LBNL's Catalytic
Chemical Oxidation (CCO) technology used to perform the treatment of
the original mixed waste. Mixed waste is defined as waste that contains
hazardous waste subject to the requirements of RCRA and source, special
nuclear, or by-product material subject to the requirements of the
Atomic Energy Act (AEA). See 42 U.S.C. 6903 (41), added by the Federal
Facility Compliance Act of 1992. LBNL's petitioned waste contains
tritium, a radioactive hydrogen isotope (3H) manufactured
for use as a tracer in biomedical research.
The EPA is finalizing:
(1) The decision to grant LBNL's petition to have its F002, F003,
and F005 mixed waste excluded from the definition of a hazardous waste,
subject to certain conditions; and (2) the decision to grant LBNL's
petition for a determination that the CCO technology used to perform
the treatment of the original mixed waste is equivalent to combustion
as defined in EPA's Land Disposal Restriction (LDR) Program for
treatment of high-total organic carbon (TOC) subcategory D001 ignitable
wastes. Because LBNL's original mixed waste is also a D001 ignitable
waste, it must be treated via a combustion technology prior to disposal
to meet the LDR treatment standard.
B. Why Is EPA Approving These Petitions?
LBNL's delisting petition requests a delisting for approximately
200 U.S. gallons of residues from treatment of low-level mixed waste.
The petitioned wastes met the definition of listed F002, F003, and F005
RCRA hazardous wastes because they were derived from treatment of mixed
wastes that are listed for these waste codes. LBNL does not believe the
petitioned waste meets the
[[Page 46952]]
criteria for which EPA listed it as a hazardous waste. LBNL also
believes no additional constituents or factors could cause the waste to
be hazardous.
EPA's review of this petition included consideration of the
original listing criteria and the additional factors required by the
Hazardous and Solid Waste Amendments of 1984 (HSWA). See section
3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(1)-(4)
(hereinafter all sectional references are to 40 CFR unless otherwise
indicated). In making the final delisting determination, EPA also
evaluated the petitioned waste against the listing criteria and factors
cited in Sec. 261.11(a)(2) and (a)(3). Based on this review, the EPA
agrees with the petitioner that the waste is nonhazardous with respect
to the original listing criteria.
If EPA had found, based on this review, that the waste remained
hazardous based on the factors for which the waste was originally
listed, EPA would have proposed to deny the petition. EPA evaluated the
waste with respect to other factors to assess whether there is a
reasonable basis to believe that such additional factors could cause
the waste to be hazardous. These factors included: (1) Whether the
waste is considered acutely toxic; (2) the toxicity of the
constituents; (3) the concentrations of the constituents in the waste;
(4) the tendency of the hazardous constituents to migrate and to
bioaccumulate; (5) persistence of the constituents in the environment
once released from the waste; (6) plausible and specific types of
management of the petitioned waste; (7) the quantity of waste produced;
and (8) waste variability. EPA believes the petitioned waste does not
meet these factors or the listing criteria.
LBNL's DET petition requests a determination under 40 CFR 268.42(b)
that the CCO technology used to perform the treatment of the original
mixed waste is equivalent to combustion as defined in EPA's LDR
Program.
We are granting the DET because LBNL has adequately demonstrated
that the CCO technology is equivalent to combustion for the treatment
of organic wastes. This demonstration is based primarily on the
following key factors: (1) The CCO system achieves a destruction and
removal efficiency of more than 99.999% at a temperature near or above
500[deg]C; (2) the CCO system does not emit Hydrogen Chloride Vapor
(HCl) or particulate matter; and (3) the CCO system was operated in
compliance with Federal, State and local hazardous waste and air
emission regulations. The treatment residues generated from LBNL's use
of the CCO technology have met the applicable LDR technology standard
for DOO1 waste. The LDR treatment standards for F002, F003, and F005
wastes are numeric standards. The CCO technology treated the original
mixed wastes to below these numeric standards.
C. What Are the Limits of This Exclusion?
This exclusion applies to the waste described in the petitions only
if conditions contained herein are satisfied.
D. How Will LBNL Manage the Waste?
LBNL is currently storing the waste in its permitted mixed waste
storage facility. When the delisting exclusion is finalized, LBNL will
dispose the waste in an authorized low-level radioactive waste disposal
facility.
E. When Is the Final Rule Effective?
This rule is effective August 7, 2003. The Hazardous and Solid
Waste Amendments of 1984, amended section 3010 of RCRA, 42 USCA
6930(b)(1), allow rules to become effective in less than six months
after the rule is published when the regulated community does not need
the six-month period to come into compliance. That is the case here
because this rule reduces, rather than increases, the existing
requirements for persons generating hazardous waste. This reduction in
existing requirements also provides a basis for making this rule
effective immediately, upon publication, under the Administrative
Procedure Act, pursuant to 5 USCA 553(d).
F. How Does This Final Rule Affect States?
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, LBNL must obtain delisting authorization
from that State before the waste may be managed as nonhazardous in that
State.
II. Background
A. What Is a Delisting Petition?
A delisting petition is a request from a generator to EPA or
another agency with jurisdiction to exclude, or delist, from the RCRA
list of hazardous waste, waste the generator believes should not be
considered hazardous under RCRA.
B. What Regulations Allow Facilities to Delist a Waste?
Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to
remove their wastes from hazardous waste regulation by excluding them
from the lists of hazardous wastes contained in Sec. Sec. 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
265 and 268 of Title 40 of the Code of Federal Regulations. Section
260.22 provides generators the opportunity to petition the
Administrator to exclude a waste from a particular generating facility
from the hazardous waste lists.
C. What Information Must the Generator Supply for a Delisting Petition?
Petitioners must provide sufficient information to EPA 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, the Administrator must determine, where he/she has a
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, that such factors do not
warrant retaining the waste as a hazardous waste.
D. What Is a Demonstration of Equivalent Treatment?
A demonstration of equivalent treatment petition is a request from
a generator to EPA or another agency with jurisdiction to grant DETs,
asking that EPA approve an alternative treatment method that can
achieve a measure of performance equivalent to that achievable by the
EPA-specified method in the LDR program.
[[Page 46953]]
E. What Regulations Allow Facilities To Request a Demonstration of
Equivalent Treatment?
Under 40 CFR 268.42(b), facilities may submit an application to EPA
demonstrating that an alternative treatment method can achieve a
measure of performance equivalent to that achieved by methods specified
in Sec. 268.42.
F. What Information Must the Generator Supply for a Demonstration of
Equivalent Treatment Petition?
Petitioners must provide sufficient information to EPA, to allow
EPA to determine that the alternative treatment method provides a
measure of performance equivalent to that achieved by the EPA-specified
method in the LDR program. Such information generally includes: a
demonstration that their treatment method is in compliance with
federal, state, and local requirements and is protective of human
health and the environment, and demonstrations of equivalence for an
alternative method of treatment based on a comparison of technologies.
III. EPA's Evaluation of the Waste Information and Data
A. What Waste Did LBNL Petition EPA To Delist?
On June 30, 1999, LBNL petitioned EPA to exclude from the list of
hazardous wastes at 40 CFR 261.31, an initial volume of approximately
105 U.S. gallons and an approximate annual volume of 65 U.S. gallons of
CCO treatment residues generated at the NTLF and designated as F002,
F003, and F005 listed mixed wastes. F002, F003, and F005 wastes are
spent halogenated and non-halogenated solvent mixtures from non-
specific sources. LBNL also included in this submittal a demonstration
of equivalent treatment petition for this same waste as this waste is
also high-TOC subcategory D001 ignitable wastes.
Since submitting the petitions, the NTLF has generated an
additional approximately 95 gallons of treatment residues. There will
be no additional treatment residues from the CCO process. LBNL has
closed the NTLF. Therefore, the total amount of waste LBNL has
petitioned to delist and for which it has sought demonstration of
equivalent treatment approval is a total fixed amount of 200 U.S.
gallons.
B. How Did LBNL Sample and Analyze the Waste for the Petitions?
LBNL submitted seven sets of analytical data from mixed waste
samples and six sets of analytic data from surrogate waste samples.
Because there are no commercially available analytical laboratories
with the ability to analyze high activity mixed wastes from NTLF (due
to the level of radioactivity), all analytical testing for these mixed
wastes was conducted in-house by LBNL and NTLF staff. As a quality
control measure, non-radioactive surrogate waste samples were sent for
analysis to an offsite commercial laboratory and results were compared
to the in-house data.
For the in-house testing data, LBNL provided the experimental data
documentation from the operation of the CCO system, and the test
results (GC chromatograms). LBNL's in-house testing method used direct
liquid injection gas chromatography to minimize the volume of the
sample. The LBNL method used two detectors, a Mass Spectrometer and a
Flame Ionization Detector. Together, these can detect organic compounds
listed in 40 CFR part 261, appendix VIII including those compounds that
were present in the original mixed waste and surrogate samples prior to
treatment.
LBNL also tested all samples for pH in-house using pH strips. LBNL
did not test for inorganic or metal compounds because, based upon the
processes and chemicals that LBNL used to produce these wastes, these
compounds were not present in the original mixed waste or surrogate
samples.
The surrogate samples that were sent to an off-site commercial
analytical laboratory were analyzed by EPA Test Methods 8015 (modified)
for Industrial Solvents and Method 8260 for Volatile Organic Compounds.
Several samples were also tested by Method 8270 for Base Neutral and
Acid Extractable Organic Compounds (semivolatile compounds).
IV. Public Comments Received on the Proposed Rule
EPA began accepting public comments just after the original
delisting and DET petitions were received in June 1999. At that time,
LBNL had just begun treatment of the mixed waste using the CCO process.
LBNL operated the CCO system as part of its treatability study in
accordance with DTSC regulations (22 CCR 66261.4).
Given the passage of time, many of the public comments that EPA
received raised concerns about the treatability study that are no
longer pertinent. All the mixed waste has already been treated, the
residue is no longer hazardous, and LBNL has closed the NTLF. The
remaining residues are radioactive-only and therefore are subject to
regulation by NRC. Thus, the potential availability of new treatment
technologies has no bearing on EPA's action here.
Other comments raised issues that are not relevant to the Delisting
or DET petitions, such as the Superfund status of LBNL and the
potential future issuance of treatment permits authorizing CCO
technology. While EPA believes that the CCO process is equivalent to,
and in some ways superior to combustion, under our regulations, this
decision is site-specific. Others who are pursuing this technology will
need to submit their own delisting and DET petitions and permit
applications.
A. Who Submitted Comments on the Proposed Rule?
A total of 192 comments (letters and oral testimony) were received
during the public comment period from a wide variety of industry and
trade associations; a local community group; universities and academic
institutions; pharmaceutical companies; Department of Energy (DOE)
facilities and LBNL; individuals; and government organizations. Of the
comments received, one hundred and seventy-two of the comments were
supportive of the proposed decisions, six comments were neutral, and
fourteen comments were non-supportive of the proposed decisions. A more
detailed response to comment document is included in the rulemaking
docket.
B. What Did the Supportive Public Comments Say?
The supportive comments came from all of the categories of groups
listed above except for the local community group.
In general, the supportive comments cited the small volumes of
waste involved, the small scale of the treatment process, treatment
onsite by the waste generators, the expertise of the staff involved in
the treatment, and the protective controls already in place under DOE
regulation. The supportive comments also pointed out the lack of
affordable treatment and disposal options for mixed waste and the
effectiveness of the CCO method as superior over required large-scale
commercial processes (e.g. incineration) because it prevents the
release of tritium to the environment. Many organizations also
mentioned this proposed rule as an important initiative designed to
help resolve a national mixed waste problem faced by the DOE, other
research organizations, and the pharmaceutical industry.
[[Page 46954]]
Several commenters urged EPA to promulgate a broad conditional
exemption from RCRA for the use of CCO to all mixed wastes including
those containing accelerator produced radionuclides for all sites that
are Nuclear Regulatory Commission (NRC) licensees.
EPA Responds: EPA appreciates the viewpoints expressed by these
commenters but stresses that our decisions are site-specific and only
apply to LBNL's CCO process and waste. Others who may wish to exclude
their waste or demonstrate that their particular CCO system or other
technology is equivalent to that required for treatment of ignitable
wastes as required by our LDR regulations, would be required to submit
their own Delisting and DET Petitions to EPA or their authorized state.
C. What Were the Non-Supportive Comments and EPA's Responses?
The non-supportive comments came mostly from a local community
group with a few from industry.
(1) One industry representative expressed support for EPA's
proposed delisting decision but did not support the DET proposed
decision. This commenter was concerned that EPA's decision will give an
implied seal of approval by allowing the decision to include any other
application of the CCO technology beyond the instance of its practice
at LBNL. This commenter was further concerned that EPA's approval is
``sanctioning a thermal technology, not unlike incineration, when other
alternatives are available.'' Several local citizens expressed a
similar concern that approval of the petition could allow others to
utilize the petition and help others ``* * * get their legal status
established'' and that approval of the petition will open the use of
this process for further application at LBNL.
EPA Responds: EPA disagrees with these commenters. As previously
described our final decision is a site-specific, one-time only
exclusion, that applies to the approximately 200 US Gallons of residues
from treatment of low-level mixed waste from the NTLF at LBNL. The NTLF
that generated the original mixed waste is now closed and is not
expected to reopen. The CCO unit has been dismantled and stored and is
not expected to be reused at the LBNL facility.
LBNL did purposefully share their data from the treatability study
and their analysis of the regulatory requirements for treatment of
mixed waste to assist others who are interested in developing national
capacity for treatment of mixed wastes. However, others who may wish to
demonstrate their own particular CCO technology would be required to
submit their own DET Petition to EPA or their authorized state.
(2) Another commenter said that the tritium should not be disposed
in a landfill. Other commenters agreed and expressed concern that EPA
has inaccurate information regarding the availability of mixed waste
treatment and disposal facilities. Additionally, several commenters
stated that a superior process for CCO is currently being tested under
EPA's Project XL and therefore LBNL's Delisting Petition is not
necessary.
EPA Responds: EPA disagrees with these commenters that the
Delisting Petition is unnecessary or that tritium should not be
disposed to a landfill. Tritium is not a regulated hazardous waste
constituent under EPA's RCRA program. Approval of the Delisting
Petition in no way alters the DOE radioactive material standards
applicable to the tritium in the treatment residuals. These wastes must
be managed as a low-level radioactive waste.
At this time, EPA is unaware of any available option for recycling
of the tritium. EPA believes that the CCO process LBNL used represents
the state of the art in capture and recovery of tritium in mixed waste.
The wide geographic use and almost simultaneous development of this
technology nationally and the degree of sharing of information among
these facilities leads EPA to conclude that catalytic chemical
oxidation of mixed wastes is a viable and effective treatment method.
(3) Several commenters requested that EPA postpone its Delisting
and DET decision until all the radioactivity in the treated residual
waste has decayed, then manage the waste as a hazardous waste.
Commenters suggest that this would be the cheapest and safest method of
dealing with the waste and less of a health risk than future burning of
more radioactive mixed waste.
EPA Responds: EPA disagrees with these commenters. The original
mixed waste has already been treated to destroy the hazardous
constituents; the remaining treatment residuals are low-level
radioactive waste only (tritiated water). The DET and Delisting are
necessary administrative steps to facilitate appropriate final
disposition of the waste. EPA calculates that the natural decay of
these residuals would take several hundred years. The permitted mixed
waste storage facility at LBNL is not designed or operated to store
radioactive wastes for this long period of time. EPA believes that the
treated residual waste is best managed as a low-level radiological
waste at a disposal facility designed and operated to safely and
permanently manage these wastes.
Our decision to grant LBNL's petitions for a Delisting and DET is
site specific and applies only to the 200 gallons of treated residual
waste at LBNL. Any other facility that generates and wishes to treat
its own mixed waste is subject to its own local, state, and federal
regulations for hazardous and for radioactive wastes.
(4) Several commenters expressed a variety of concerns regarding
tritium and its release during the CCO process, given that ``the CCO
system is still a very highly experimental process'' and believed that
it was premature for EPA to make any decisions regarding the use of the
process at this time. Commenters also asked numerous questions
regarding specific operational details of the CCO system such as the
possible formation of deposits or dioxins, and whether any corrosion or
safety studies had been done.
EPA Responds: EPA disagrees that consideration of the fate of
tritium during the CCO process is relevant to our proposed decisions to
grant the Delisting or the DET Petitions or that the CCO process is
experimental or our decision premature. As previously described,
tritium is not a RCRA hazardous constituent and therefore is not
subject to EPA's delisting or DET petition regulations. EPA regulates
the hazardous waste portion, while the NRC or DOE regulate the
radioactive portion of mixed waste.
In order for EPA to delist a particular waste, the petitioner must
demonstrate: (1) The waste does not meet any of the criteria under
which the waste was listed, (2) the waste does not exhibit any of the
hazardous waste characteristics defined in Secs. 261.21 through 261.24,
and (3) there are no additional constituents in the waste other than
those for which it was listed, that would cause the waste to be a
hazardous waste (40 CFR 260.22(a)). For this petition, EPA believes
that LBNL has met the three criteria listed in 40 CFR 260.22(a) because
the treatment residuals do not contain any detectable concentrations of
RCRA hazardous constituents.
The object of the CCO process was to ensure destruction of the
hazardous constituents of the waste while capturing radioactive
constituents. The data from the treatability study indicate a greater
than 98% trapping efficiency for the tritiated water in the CCO system.
EPA believes that the CCO process represents the state of the art in
[[Page 46955]]
capture and recovery of tritium and is far more effective in the
capture of tritium than combustion in a permitted mixed waste
incinerator. Therefore, we maintain that the CCO process provides a
superior environmental outcome than destruction of the wastes by
incineration.
LBNL did not ``invent'' catalytic chemical oxidation technology nor
did they pioneer its use for destroying mixed waste; rather, they
adopted this proven technology to their specific type of mixed waste.
LBNL operated their CCO process in accordance with State of California
regulations (22 CCR 66261.4) for conducting treatability studies, which
are designed to insure that treatability studies are conducted in a
safe manner. Pre-approval to operate any treatment unit in compliance
with these regulations is not required. The regulations do, however,
require that LBNL notify the State prior to conducting the study,
obtain an EPA identification number, limit the volume of waste treated
and the amount of time of treatment, meet certain management standards
for both wastes and treatment residues, keep records, and submit annual
reports to the State. Additionally, LBNL was also subject to any other
applicable regulatory standards from other agencies such as the
California State Air Resources Board and DOE. DTSC confirms that LBNL
operated the CCO process in accordance with the applicable regulations
for treatability studies.
(5) Several commenters asked for an independent peer review of
LBNL's treatability study and analytical data and asked how EPA could
allow LBNL to choose and submit only 7 sets of analytical data to
represent 71 treatment batches.
EPA Responds: EPA disagrees with the commenters that an independent
peer review of the treatability study or the analytical data generated
in support of the Delisting and DET Petition is necessary. As described
below, EPA has full confidence that the procedures followed for
generation and review of the data is sufficient to meet the regulatory
requirements for Delisting and DET Petitions and are sufficient to
support our final decision.
EPA performed both a completeness and technical review of LBNL's
Delisting Petition and concludes that LBNL satisfied all of the RCRA
regulatory requirements for analytical testing in support of Delisting
Petitions and that (1) No RCRA hazardous constituents are likely to be
present above detection limits in the treatment residues or the bubbler
water on silica gel generated by catalytic chemical oxidation treatment
of the original mixed waste at LBNL, and (2) the petitioned waste does
not exhibit any of the characteristics of ignitability, corrosivity,
reactivity, or toxicity. See 40 CFR 261.21, 261.22, 261.23, and 261.24,
respectively.
EPA's Delisting regulations (40 CFR 260.22) require applicants to
submit no less than four representative samples of analytical data in
support of a petition. The burden of proof that the samples are
representative of the overall petitioned waste is on the applicant.
LBNL detailed how it determined that the seven sets of analytical data
submitted are representative of the overall petitioned waste. The sworn
affidavit submitted with the petition binds the petitioner to present
truthful and accurate results under penalty of perjury. LBNL submitted
a signed Certification of Accuracy and Responsibility required by 40
CFR 260.22(i)(12). EPA reviewed and approved LBNL's rationale for the
selection of representative samples. LBNL also made available to EPA
all of the remaining analytical data from the treatability study.
V. 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) (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 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, and Reporting
and recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: July 25, 2003.
Alexis Strauss,
Acting Regional Administrator, Region IX.
0
For the reasons set out in the preamble, 40 CFR part 261 is amended as
follows:
PART 261--IDENTIFICATION AND LISTING HAZARDOUS WASTE
0
1. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and
6938.
0
2. In Table 1, of Appendix IX of Part 261 add the following waste
stream in alphabetical order by facility to read as follows:
[[Page 46956]]
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
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Lawrence Berkeley National Laboratory............................ Berkeley, California.................. Treated ignitable and spent halogenated and
non-halogenated solvent mixed waste (D001,
F002, F003, and F005), and bubbler water on
silica gel generated during treatment at the
National Tritium Labeling Facility (NTLF) of
the Lawrence Berkeley National Laboratory
(LBNL). This is a one-time exclusion for 200
U.S. gallons of treatment residues that will
be disposed of in a Nuclear Regulatory
Commission (NRC) licensed or Department of
Energy (DOE) approved low-level radioactive
waste disposal facility, after August 7,
2003.
(1) Waste Management: The treated waste
residue and bubbler water on silica gel must
be managed in accordance with DOE or NRC
requirements prior to and during disposal.
(2) Reopener Language: (A) If, anytime after
disposal of the delisted waste, LBNL
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 organic constituent from the waste
is detected in the leachate or the
groundwater, then LBNL 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 (2)(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 LBNL 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 LBNL with an opportunity
to present information as to why the
proposed Agency action is not necessary or
to suggest an alternative action. LBNL shall
have 30 days from the date of the Regional
Administrator's notice to present the
information. (D) If after 30 days LBNL
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.
(3) Notification Requirements: LBNL must do
the following before transporting the
delisted waste off-site:(A) Provide a one-
time written notification to any State
Regulatory Agency to which or through which
they will transport the delisted waste
described above for disposal, 60 days before
beginning such activities. (B) Update the
one-time written notification if LBNL ships
the delisted waste to a different disposal
facility. Failure to provide this
notification will result in a violation of
the delisting petition and a possible
revocation of the exclusion.
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[[Page 46957]]
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[FR Doc. 03-20161 Filed 8-6-03; 8:45 am]
BILLING CODE 6560-50-P