[Federal Register: November 17, 2003 (Volume 68, Number 221)]
[Proposed Rules]
[Page 64834-64843]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17no03-19]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-7587-3]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Proposed Exclusion
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule and request for comment.
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SUMMARY: The EPA is proposing to grant a petition submitted by American
Chrome & Chemicals L.P. (ACC) to exclude (or delist) certain dewatered
sludge from the production of chrome oxide green pigments (K006)
generated at its Corpus Christi, Texas facility from the lists of
hazardous wastes.
The EPA used the Delisting Risk Assessment Software (DRAS) in the
evaluation of the impact of the petitioned waste on human health and
the environment.
The EPA bases its proposed decision to grant the petition on an
evaluation of waste-specific information provided by the petitioner.
This proposed decision, if finalized, would conditionally exclude the
petitioned waste, the dewatered sludge, from the requirements of
hazardous waste regulations under the Resource Conservation and
Recovery Act (RCRA).
If finalized, the EPA would conclude that ACC's petitioned waste is
nonhazardous with respect to the original listing criteria and will
substantially reduce the likelihood of migration of constituents from
this waste. The EPA would also conclude that their process minimizes
short-term and long-term threats from the petitioned waste to human
health and the environment.
DATES: The EPA will accept comments until January 2, 2004. The EPA will
stamp comments received after the close of the comment period as
``late.'' These late comments may not be considered in formulating a
final decision. Your requests for a hearing must reach the EPA by
December 2, 2003. The request must contain the information prescribed
in 40 CFR 260.20(d).
ADDRESSES: Please send three copies of your comments. You should send
two copies to the Section Chief of the Corrective Action and Waste
Minimization Section, Multimedia Planning and Permitting Division,
(6PD-C), Environmental Protection Agency, 1445 Ross Avenue, Dallas,
Texas 75202. You should send a third
[[Page 64835]]
copy to Wade Wheatley, Industrial Hazardous Waste Permits Division,
Technical Evaluation Team, Texas Commission on Environmental Quality
(TCEQ), P.O. Box 13087, Austin, Texas, 78711-3087. Identify your
comments at the top with this regulatory docket number: ``F-03-TXDEL-
ACC'' You may submit your comments electronically to peace.michelle@epa.gov.
You should address requests for a hearing to the Director, Carl
Edlund, Multimedia Planning and Permitting Division (6PD),
Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202.
FOR FURTHER INFORMATION CONTACT: Michelle Peace (214) 665-7430.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What action is the EPA proposing?
B. Why is the EPA proposing to approve this delisting?
C. How will ACC manage the waste if it is delisted?
D. When would the EPA finalize the proposed delisting?
E. How would this action affect states?
II. Background
A. What is the history of the delisting program?
B. What is a delisting petition, and what does it require of a
petitioner?
C. What factors must the EPA consider in deciding whether to
grant a delisting petition?
III. The EPA's Evaluation of the Waste Information and Data
A. What waste did ACC petition the EPA to delist?
B. Who is ACC and what process does it use to generate the
petitioned waste?
C. How did ACC sample and analyze the waste in this petition?
D. What were the results of ACC's analysis?
E. How did the EPA evaluate the risk of delisting this waste?
F. What did the EPA conclude about ACC's analysis?
G. What other factors did the EPA consider in its evaluation?
H. What is the EPA's Final evaluation of this delisting
petition?
IV. Next Steps
A. With what conditions must the petitioner comply?
B. What happens if ACC violates the terms and conditions?
V. Public Comments
A. How may I as an interested party submit comments?
B. How may I review the docket or obtain copies of the proposed
exclusions?
VI. Regulatory Impact
VII. Regulatory Flexibility Act
VIII. Paperwork Reduction Act
IX. Unfunded Mandates Reform Act
X. Executive Order 13045
XI. Executive Order 13084
XII. National Technology Transfer and Advancement Act
XIII. Executive Order 13132 Federalism
I. Overview Information
A. What Action Is the EPA Proposing?
The EPA is proposing to grant ACC's petition to have its dewatered
sludge (chromic oxide) excluded, or delisted, from the definition of a
hazardous waste, subject to certain verification and monitoring
conditions.
B. Why Is the EPA Proposing To Approve This Delisting?
ACC's petition requests a delisting for a listed hazardous waste.
ACC does not believe that the petitioned waste meets the criteria of
K006 for which the EPA listed it. ACC also believes no additional
constituents or factors could cause the waste to be hazardous. The
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 initial delisting determination, the EPA evaluated the
petitioned waste against the listing criteria and factors cited in
Sec. Sec. 261.11(a)(2) and (a)(3). Based on this review, the EPA
agrees with the petitioner that the petition waste is nonhazardous with
respect to the original listing criteria. (If the EPA had found, based
on this review, that the waste remained hazardous based on the factors
for which the waste was originally listed, the EPA would have proposed
to deny the petition.) The EPA evaluated the waste with respect to
other factors or criteria to assess whether there is a reasonable basis
to believe that such additional factors could cause the waste to be
hazardous. The EPA considered whether the waste is acutely toxic, the
concentration of the constituents in the waste, their tendency to
migrate and to bioaccumulate, their persistence in the environment once
released from the waste, plausible and specific types of management of
the petitioned waste, the quantities of waste generated, and waste
variability. The EPA believes that the petitioned waste does not meet
the listing criteria and thus should not be a listed waste. The EPA's
proposed decision to delist waste from ACC's facility is based on the
information submitted in support of this rule, including descriptions
of the wastes and analytical data from the Corpus Christi, Texas
facility.
C. How Will ACC Manage the Waste if It Is Delisted?
For the past 12 years, ACC's dewatered sludge (chromic oxide) has
been transferred off-site for treatment/disposal at Texas Ecologists,
Inc. a nondedicated, off-site, land-based hazardous waste unit in
Robstown, Texas. The waste management method used for the wastewater
sludge at Texas Ecologists, Inc. is landfilling. The most recent
transfer of the petitioned waste to Texas Ecologists was October 17,
2000.
ACC originally proposed to dispose of the dewatered sludge in an
on-site surface impoundment. However, because the DRAS model cannot
accommodate ACC's site specific parameters for the surface impoundment
scenario, accurate estimates of potential ground water risks could not
be made. Therefore, ACC has determined that the delisted waste will be
disposed of in a non-hazardous waste landfill. If the delisting
exclusion is finalized, ACC will dispose of the petitioned waste,
dewatered sludge, at a Subtitle D solid waste landfill.
D. When Would the EPA Finalize the Proposed Delisting?
RCRA section 3001(f) specifically requires the EPA to provide
notice and an opportunity for comment before granting or denying a
final exclusion. Thus, the EPA will not grant the exclusion until it
addresses all timely public comments (including those at public
hearings, if any) on this proposal.
RCRA section 3010(b)(1) at 42 USCA 6930(b)(1), allows 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 persons generating hazardous wastes.
The EPA believes that this exclusion should be effective
immediately upon final publication because a six-month deadline is not
necessary to achieve the purpose of section 3010(b), and a later
effective date would impose unnecessary hardship and expense on this
petitioner. These reasons also provide good cause for making this rule
effective immediately, upon final publication, under the Administrative
Procedure Act, 5 U.S.C. 553(d).
E. How Would This Action Affect States?
Because the EPA is issuing this exclusion under the Federal RCRA
delisting program, only states subject to Federal RCRA delisting
provisions would be affected. This would exclude
[[Page 64836]]
two categories of states: States having a dual system that includes
Federal RCRA requirements and their own requirements, and states which
have received authorization from the EPA to make their own delisting
decisions.
The EPA allows states to impose its own non-RCRA regulatory
requirements that are more stringent than the EPA's, under section 3009
of RCRA, 42 U.S.C. 6929. These more stringent requirements may include
a provision that prohibits a Federally issued exclusion from taking
effect in the state. Because a dual system (that is, both Federal
(RCRA) and state (non-RCRA) programs) may regulate a petitioner's
waste, the EPA urges petitioners to contact the state regulatory
authority to establish the status of their wastes under the state law.
The EPA has also authorized some states (for example, Louisiana,
Georgia, Illinois) to administer a RCRA delisting program in place of
the Federal program, that is, to make state delisting decisions.
Therefore, this exclusion does not apply in those authorized states
unless that state makes the rule part of its authorized program. If ACC
transports the petitioned waste to or manages the waste in any state
with delisting authorization, ACC must obtain delisting authorization
from that state before it can manage the waste as nonhazardous in the
state.
II. Background
A. What Is the History of the Delisting Program?
The EPA published an amended list of hazardous wastes from
nonspecific and specific sources on January 16, 1981, as part of its
final and interim final regulations implementing section 3001 of RCRA.
The EPA has amended this list several times and published it in
Sec. Sec. 261.31 and 261.32.
The EPA lists 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 Part 261 (that is, ignitability,
corrosivity, reactivity, and toxicity) or (2) they meet the criteria
for listing contained in Sec. 261.11(a)(2) or (a)(3).
Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
described in these regulations generally is hazardous, a specific waste
from an individual facility meeting the listing description may not be
hazardous.
For this reason, Sec. Sec. 260.20 and 260.22 provide an exclusion
procedure, called delisting, which allows persons to prove that the EPA
should not regulate a specific waste from a particular generating
facility as a hazardous waste.
B. What Is a Delisting Petition, and What Does It Require of a
Petitioner?
A delisting petition is a request from a facility to the EPA or an
authorized state to exclude wastes from the list of hazardous wastes.
The facility petitions the Agency because it does not consider the
wastes hazardous under RCRA regulations.
In a delisting petition, the petitioner must show that wastes
generated at a particular facility do not meet any of the criteria for
which the waste was listed. The criteria for which the EPA lists a
waste are in Part 261 and further explained in the background documents
for the listed waste.
In addition, under Sec. 260.22, a petitioner must prove that the
waste does not exhibit any of the hazardous waste characteristics (that
is, ignitability, reactivity, corrosivity, and toxicity) and present
sufficient information for the EPA to decide whether factors other than
those for which the waste was listed warrant retaining it as a
hazardous waste. (See part 261 and the background documents for the
listed waste.) Generators remain obligated under RCRA to confirm
whether their waste remains nonhazardous based on the hazardous waste
characteristics even if the EPA has ``delisted'' the waste.
C. What Factors Must the EPA Consider in Deciding Whether To Grant a
Delisting Petition?
Besides considering the criteria in Sec. 260.22(a) and Section
3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for
the listed wastes, the EPA must consider any factors (including
additional constituents) other than those for which we listed the waste
if a reasonable basis exists that these additional factors could cause
the waste to be hazardous.
The EPA must also consider as hazardous waste mixtures containing
listed hazardous wastes and wastes derived from treating, storing, or
disposing of listed hazardous waste. See Sec. 261.3(a)(2)(iii) and
(iv) and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules,
respectively. These wastes are also eligible for exclusion and remain
hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).
III. The EPA's Evaluation of the Waste Information and Data
A. What Waste Did ACC Petition the EPA To Delist?
On April 17, 2002, ACC petitioned the EPA to exclude from the list
of hazardous waste contained in Sec. 261.32, the dewatered sludge
generated from its facility located in Corpus Christi, Texas. The
waste, the EPA Hazardous Waste No. K006, falls under the classification
of listed waste because of the ``derived-from'' rule in Sec. 261.3.
Specifically, in its petition, ACC requested that the EPA grant an
exclusion for 1450 cubic yards per year of dewatered sludge resulting
from its process of manufacturing chromic oxide. The resulting waste is
listed, in accordance with the ``derived-from'' rule.
ACC's wastewater sludge contains approximately 11% solids. The
petitioned waste is only the dewatered portion of the sludge, not the
entire sludge (solids and wastewater) that is generated from the
current wastewater treatment process. Currently, ACC discharges the
wastewater sludge through Outfall 201, into an on-site storage tank.
The discharge is permitted by Texas Commission on Environmental Quality
(TCEQ) through a Texas Pollution Discharges Elimination System (TPDES)
Permit No. 003490 (EPA NPDES Permit No. TX0004685).
B. Who Is ACC and What Process Does It Use To Generate the Petitioned
Waste?
The ACC facility is located in an industrial/commercial setting in
the western portion of the City of Corpus Christi, Nueces County,
Texas. ACC produces various grades of chromic oxide at their Corpus
Christi, Texas facility. Chromic oxide is produced through the chemical
reaction of sodium dichromate and ammonium sulfate. The produced
chromic oxide is washed to create the desired purity of the final
product. The sludge generated from this process is listed hazardous
waste and identified as K006. The facility operates 24 hours per day, 7
days per week, 365 days per year with the exception of periodic planned
shutdowns for routine maintenance.
C. How Did ACC Sample and Analyze the Waste in This Petition?
To support its petition, ACC submitted:
(1) historical information on past waste generation and management
practices;
(2) results of the total constituent list for 40 CFR part 264,
appendix IX
[[Page 64837]]
volatiles, semivolatiles, metals, pesticides, herbicides, and PCBs;
(3) results of the constituent list for appendix IX on Toxicity
Characteristic Leaching Procedure (TCLP) extract;
(4) results from total oil and grease analyses; and
(5) multiple pH testing of the petitioned waste.
D. What Were the Results of ACC's Analyses?
The EPA believes that the descriptions of the ACC hazardous waste
process and analytical characterization in conjunction with the
proposed verification testing requirements (as discussed later in this
document), provide a reasonable basis to grant ACC's petition for an
exclusion of the petitioned waste. The EPA believes the data submitted
in support of the petition show the dewatered sludge is non-hazardous.
Analytical data for the petitioned waste samples were used in the
Delisting Risk Assessment Software (DRAS). The EPA has reviewed the
sampling procedures used by ACC and has determined they satisfy the EPA
criteria for collecting representative samples of the variations in
constituent concentrations in the dewatered wastewater sludge. The data
submitted in support of the petition show that constituents in ACC's
waste are presently below health-based levels used in the delisting
decision-making. The EPA believes that ACC has successfully
demonstrated that the petitioned waste is non-hazardous.
E. How Did the EPA Evaluate the Risk of Delisting This Waste?
For this delisting determination, the EPA used such information
gathered to identify plausible exposure routes (i.e., ground water,
surface water, air) for hazardous constituents present in the
petitioned waste. The EPA determined that disposal in a Subtitle D
landfill is the most reasonable, worst-case disposal scenario for ACC's
petitioned waste. The EPA applied the DRAS described in 65 FR 58015
(September 27, 2000) and 65 FR 75637 (December 4, 2000), to predict the
maximum allowable concentrations of hazardous constituents that may be
released from the petitioned waste after disposal and determined the
potential impact of the disposal of ACC's petitioned waste on human
health and the environment. A copy of this software can be found on the
World Wide Web at http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dras.htm.
In assessing potential risks to ground water, the EPA used
the maximum estimated waste volumes and the maximum reported extract
concentrations as inputs to the DRAS program to estimate the
constituent concentrations in the ground water at a hypothetical
receptor well down gradient from the disposal site. Using the risk
level (carcinogenic risk of 10-5 and non-cancer hazard index
of 0.1), the DRAS program can back-calculate the acceptable receptor
well concentrations (referred to as compliance-point concentrations)
using standard risk assessment algorithms and Agency health-based
numbers. Using the maximum compliance-point concentrations and the EPA
Composite Model for Leachate Migration with Transformation Products
(EPACMTP) fate and transport modeling factors, the DRAS further back-
calculates the maximum permissible waste constituent concentrations not
expected to exceed the compliance-point concentrations in ground water.
The EPA believes that the EPACMTP fate and transport model
represents a reasonable worst-case scenario for possible ground water
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 RCRA Subtitle C. The use of some reasonable
worst-case scenarios results in conservative values for the compliance-
point concentrations, and ensures that the waste, once removed from
hazardous waste regulation, will not pose a significant threat to human
health or the environment.
The DRAS also uses the maximum estimated waste volumes and the
maximum reported total concentrations to predict possible risks
associated with releases of waste constituents through surface pathways
(e.g., volatilization or wind-blown particulate from the landfill). The
DRAS uses the risk level, the health-based data and standard risk
assessment and exposure algorithms to predict maximum compliance-point
concentrations of waste constituents at a hypothetical point of
exposure. Using fate and transport equations, the DRAS uses the maximum
compliance-point concentrations and back-calculates the maximum
allowable waste constituent concentrations (or ``delisting levels'').
In most cases, because a delisted waste is no longer subject to
hazardous waste control, the EPA is generally unable to predict, and
does not presently control, how a petitioner will manage a waste after
delisting. Therefore, the EPA currently believes that it is
inappropriate to consider extensive site-specific factors when applying
the fate and transport model. The EPA does control the type of unit
where the waste is disposed. The waste must be disposed in the type of
unit the fate and transport model evaluates.
The EPA also considers the applicability of ground water monitoring
data during the evaluation of delisting petitions. In this case, ACC
has never directly disposed of this material in an on-site solid waste
landfill, so no representative data exists. Therefore, the EPA has
determined that it would be unnecessary to request ground water
monitoring data.
The EPA believes that the descriptions of ACC's hazardous waste
process and analytical characterization provide a reasonable basis to
conclude that the likelihood of migration of hazardous constituents
from the petitioned waste will be substantially reduced so that short-
term and long-term threats to human health and the environment are
minimized.
The DRAS results which calculate the maximum allowable
concentration of chemical constituents in the waste along with the data
summary of the detected constituents are presented in Table I. Based on
the comparison of the DRAS results and maximum TCLP concentrations, the
petitioned waste should be delisted because no constituents of concern
exceed the delisting concentrations.
Table I.--Maximum Total and TCLP Constituent Concentrations of the Dewatered Wastewater Sludge \1\
----------------------------------------------------------------------------------------------------------------
Maximum allowable
Constituent Total constituent TCLP concentration (mg/ TCLP concentration
analyses (mg/kg) L) from DRAS (mg/L)
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Arsenic...................................... 74.3 *0.00495 0.0377
Barium....................................... 21.8 *5 100
Chromium..................................... 113,000 0.644 5
Thallium..................................... 23 *0.05 0.355
[[Page 64838]]
Zinc......................................... 38.8 *0.1 1130
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\1\ These levels represent the highest concentration of each constituent found in any one sample. These levels
do not necessarily represent the specific levels found in one sample.
*Denotes that the constituent was not detected at the noted detection limit
F. What Did the EPA Conclude About ACC's Analysis?
The EPA concluded, after reviewing ACC's processes that no other
hazardous constituents of concern, other than those for which ACC
tested, are likely to be present or formed as reaction products or by
products in ACC's waste. In addition, on the basis of explanations and
analytical data provided by ACC, pursuant to Sec. 260.22, the EPA
concludes that the petitioned waste does not exhibit any of the
characteristics of ignitability, corrosivity, or reactivity. See
Sec. Sec. 261.21, 261.22, and 261.23, respectively.
G. What Other Factors Did the EPA Consider in Its Evaluation?
During the evaluation of ACC's petition, the EPA also considered
the potential impact of ACC's petitioned waste via non-ground water
routes (i.e., air emission and surface runoff). With regard to airborne
dispersion in particular, the EPA believes that exposure to airborne
contaminants from ACC's petitioned waste is unlikely. Therefore, no
appreciable air releases are likely from the petitioned waste under any
likely disposal conditions. The EPA evaluated the potential hazards
resulting from the unlikely scenario of airborne exposure to hazardous
constituents released from ACC's petitioned waste in an open landfill.
The results of this worst-case analysis indicated that there is no
substantial present or potential hazard to human health and the
environment from airborne exposure to constituents from ACC's
petitioned waste. A description of the EPA's assessment of the
potential impact of ACC's petitioned waste, regarding airborne
dispersion of waste contaminants, is presented in the RCRA public
docket for this proposed rule, F-03-TXDEL-ACC.
The EPA also considered the potential impact of the petitioned
waste via a surface water route. The EPA believes that containment
structures at municipal solid waste landfills can effectively control
surface water runoff, as the Subtitle D regulations (See 56 FR 50978,
October 9, 1991) prohibit pollutant discharges into surface waters.
Furthermore, the concentrations of any hazardous constituents dissolved
in the runoff will tend to be lower than the levels in the TCLP
leachate analyses reported in this action due to the acidic medium used
for extraction in the TCLP. The EPA believes that, in general, leachate
derived from the waste is unlikely to directly enter a surface water
body without first traveling through the saturated subsurface where
dilution and attenuation of hazardous constituents will also occur.
Leachable concentrations provide a direct measure of solubility of a
toxic constituent in water and are indicative of the fraction of the
constituent that may be mobilized in surface water as well as ground
water.
Based on the reasons discussed above, the EPA believes that the
contamination of surface water through runoff from the waste disposal
area is very unlikely. Nevertheless, the EPA evaluated the potential
impacts on surface water if ACC's petitioned waste were released from a
municipal solid waste landfill through runoff and erosion. See the RCRA
public docket for this proposed rule for further information on the
potential surface water impacts from runoff and erosion. The estimated
levels of the hazardous constituents of concern in surface water would
be well below health-based levels for human health, as well as below
the EPA Chronic Water Quality Criteria for aquatic organisms (USEPA,
OWRS, 1987). The EPA, therefore, concluded that the petitioned waste
would not present potential hazard to human health and the environment
via the surface water exposure pathway.
H. What Is the EPA's Final Evaluation of This Delisting Petition?
The descriptions of ACC's hazardous waste process and analytical
characterization, with the proposed verification testing requirements
(as discussed later in this notice), provide a reasonable basis for the
EPA to grant the exclusion. The data submitted in support of the
petition show that constituents in the waste are below the maximum
allowable leachable concentrations (see Table I). We believe ACC's
process will substantially reduce the likelihood of migration of
hazardous constituents from the petitioned waste. ACC's process also
minimizes short-term and long-term threats from the petitioned waste to
human health and the environment.
The EPA has reviewed the sampling procedures used by ACC and has
determined they satisfy the EPA criteria for collecting representative
samples of variable constituent concentrations in the petitioned
sludge. The data submitted in support of the petition show that
constituents in ACC's petitioned waste are presently below the
compliance point concentrations used in the delisting decision-making
and would not pose a substantial hazard to the environment.
The EPA believes that ACC has successfully demonstrated that the
petitioned waste is non-hazardous, and therefore, proposes to grant an
exclusion to ACC, in Corpus Christi, Texas, for the dewatered sludge
described in its petition. The EPA's decision to exclude this waste is
based on descriptions of the treatment activities and characterization
of the petitioned waste.
If we finalize the proposed rule, the Agency will no longer
regulate the petitioned waste under parts 262 through 268 and the
permitting standards of part 270.
IV. Next Steps
A. With What Conditions Must the Petitioner Comply?
The petitioner, ACC, must comply with the requirements in 40 CFR
part 261, appendix IX, Table 2 as amended by this notice. The text
below gives the rationale and details of those requirements.
(1) Delisting Levels
This paragraph provides the levels of constituents for which ACC
must test the leachate from the dewatered sludge, below which the waste
would be considered nonhazardous.
The EPA selected the set of constituents specified in Paragraph (1)
[[Page 64839]]
of 40 CFR part 261, appendix IX, Table 2, based on information in the
petition. We compiled the list from the composition of the waste,
descriptions of ACC's treatment process, previous test data provided
for the waste, and the respective health-based levels used in delisting
decision-making. These delisting levels correspond to the allowable
levels measured in the TCLP extract of the waste.
(2) Waste Holding and Handling
The purpose of this paragraph is to ensure that any dewatered
sludge which might contain hazardous levels of constituents are managed
and disposed of in accordance with Subtitle C of RCRA. Holding the
petitioned waste until characterization is complete will protect
against improper handling of hazardous material. If the EPA determines
that the data collected under this Paragraph do not support the data
provided in the petition, the exclusion will not cover the petitioned
waste. The exclusion is effective when we sign it, but the disposal
cannot begin until the verification sampling is completed. The
dewatered sludge must pass paint filter test as described in EPA SW-
846, Method 9095 before it is allowed to be shipped off-site. ACC must
maintain a record of the date and the actual volume of the dewatered
sludge removed from the tank according to the requirements in Paragraph
(5).
(3) Verification Testing Requirements
ACC shall conduct verification testing each time it is ready to
evacuate the tank sludge for disposal. Four (4) representative
composite samples for verification shall be collected from the
dewatered sludge. ACC shall analyze the verification samples according
to the constituent list specified in Paragraph (1) of 40 CFR part 261,
appendix IX, Table 2. The results from each event should be submitted
to EPA within 10 days of receiving the results.
If EPA determines that the data collected under this Paragraph do
not support the data provided for the petition, the exclusion will not
cover the generated wastes. The EPA will notify ACC of the decision in
writing within two weeks of receiving this information.
(4) Changes in Operating Conditions
Paragraph (4) would allow ACC the flexibility of modifying its
processes (for example, changes in equipment or change in operating
conditions) to improve its treatment process. ACC must prove the
effectiveness of the modified process by testing and request approval
from the EPA. ACC must manage wastes generated during the new process
demonstration as hazardous waste until it receives a written approval
from the EPA and the delisting levels specified in Paragraph (1) are
satisfied.
If the proposed exclusion is made final, it will apply only to 1450
cubic yards of dewatered sludge, generated annually at the ACC's
facility after successful verification testing.
ACC must manage waste volumes greater than 1450 cubic yards of
petitioned waste as hazardous until the EPA grants a new exclusion.
When this new exclusion becomes final, ACC's management of the
waste covered by this petition would be relieved from Subtitle C
jurisdiction. ACC must ensure that it delivers the waste to an off-site
storage, treatment, or disposal facility that has a state permit,
license, or registration to manage municipal or industrial solid waste.
The EPA would require ACC to file a new delisting petition under
any of the following circumstances:
(a) If it significantly alters the manufacturing process treatment
system except as described in Paragraph (4)
(b) If it uses any new manufacturing or production process(es), or
significantly changes from the current process(es) described in its
petition; or
(c) If it makes any changes that could affect the composition or
type of waste generated.
(5) Data Submittals
To provide appropriate documentation that ACC's facility is
properly treating the waste, ACC must compile, summarize, and keep
delisting records on-site for a minimum of five years. They must keep
all analytical data obtained through Paragraph (3) including quality
control information for five years. Paragraph (5) requires that ACC
furnish these data when the EPA or the State of Texas request them for
inspection.
(6) Reopener
The purpose of Paragraph (6) is to require ACC to disclose new or
different information related to a condition at the facility or
disposal of the waste if it is pertinent to the delisting. ACC must
also use this procedure if the verification sampling testing fails to
meet the delisting levels found in Paragraph 1. This provision will
allow the EPA to reevaluate the exclusion if a source provides new or
additional information to the Agency. The EPA will evaluate the
information on which it based the decision to see if it is still
correct, or if circumstances have changed so that the information is no
longer correct or would cause the EPA to deny the petition if
presented.
This provision expressly requires ACC to report differing site
conditions or assumptions used in the petition in addition to failure
to meet the verification testing conditions within 10 days of
discovery. If the EPA discovers such information itself or from a third
party, it can act on it as appropriate. The language being proposed is
similar to those provisions found in RCRA regulations governing no-
migration petitions at Sec. 268.6.
The EPA believes that it has the authority under RCRA and the
Administrative Procedures Act (APA), 5 U.S.C. 551 (1978) et seq., to
reopen a delisting decision. The EPA may reopen a delisting decision
when we receive new information that calls into question the
assumptions underlying the delisting.
The Agency believes a clear statement of its authority in
delistings is merited in light of Agency experience. See Reynolds
Metals Company at 62 FR 37694 (July 14, 1997) and 62 FR 63458 (December
1, 1997) where the delisted waste leached at greater concentrations in
the environment than the concentrations predicted when conducting the
TCLP, thus leading the Agency to repeal the delisting. If an immediate
threat to human health and the environment presents itself, the EPA
will continue to address these situations case by case. Where
necessary, the EPA will make a good cause finding to justify emergency
rulemaking. See APA section 553 (b).
(7) Notification Requirements
In order to adequately track wastes that have been delisted, the
EPA is requiring that ACC provide a one-time notification to any state
regulatory agency through which or to which the delisted waste is being
carried. ACC must provide this notification within 60 days of
commencing this activity.
B. What Happens if ACC Violates the Terms and Conditions?
If ACC violates the terms and conditions established in the
exclusion, the Agency will start procedures to withdraw the exclusion.
Where there is an immediate threat to human health and the environment,
the Agency will evaluate the need for enforcement activities on a case-
by-case basis. The Agency expects ACC to conduct the appropriate waste
analysis and comply with the criteria explained above in Paragraph (1)
of this exclusion.
[[Page 64840]]
V. Public Comments
A. How May I as an Interested Party Submit Comments?
The EPA is requesting public comments on this proposed decision.
Please send three copies of your comments. Send two copies to Section
Chief, Corrective Action and Waste Minimization Section, Multimedia
Planning and Permitting Division (6PD-C), Environmental Protection
Agency (EPA), 1445 Ross Avenue, Dallas, Texas 75202. Send a third copy
to Industrial Hazardous Waste Permits Division, Technical Evaluation
Team, Texas Commission on Environmental Quality (TCEQ), P.O. Box 13087,
Austin, Texas, 78711-3087. Identify your comments at the top with this
regulatory docket number: ``F-03-TXDEL-ACC.'' You may submit your comments electronically to peace.michelle@epa.gov.
You should submit requests for a hearing to Carl Edlund, Director,
Multimedia Planning and Permitting Division (6PD), Environmental
Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202.
B. How May I Review the Docket or Obtain Copies of the Proposed
Exclusion?
You may review the RCRA regulatory docket for this proposed rule at
the Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas,
Texas 75202. It is available for viewing in the EPA Freedom of
Information Act Review Room from 9 a.m. to 4 p.m., Monday through
Friday, excluding Federal holidays. Call (214) 665-6444 for
appointments. The public may copy material from any regulatory docket
at no cost for the first 100 pages, and at fifteen cents per page for
additional copies.
VI. Regulatory Impact
Under Executive Order 12866, the EPA must conduct an ``assessment
of the potential costs and benefits'' for all ``significant''
regulatory actions.
The proposal to grant an exclusion is not significant, since its
effect, if promulgated, would be to reduce the overall costs and
economic impact of the EPA's hazardous waste management regulations.
This reduction would be achieved by excluding waste generated at a
specific facility from the EPA's lists of hazardous wastes, thus
enabling a facility to manage its waste as nonhazardous.
Because there is no additional impact from this proposed rule, this
proposal would not be a significant regulation, and no cost/benefit
assessment is required. The Office of Management and Budget (OMB) has
also exempted this rule from the requirement for OMB review under
section (6) of Executive Order 12866.
VII. Regulatory Flexibility Act
Under 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 which describes the impact of
the rule on small entities (that is, 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 a small entities.
This rule, if promulgated, will not have an adverse economic impact
on small entities since its effect would be to reduce the overall costs
of the EPA's hazardous waste regulations and would be limited to one
facility. Accordingly, I hereby certify that this proposed regulation,
if promulgated, will not have a significant economic impact on a
substantial number of small entities. This regulation, therefore, does
not require a regulatory flexibility analysis.
VIII. Paperwork Reduction Act
Information collection and record-keeping requirements associated
with this proposed rule have been approved by the Office of Management
and Budget (OMB) under the provisions of the Paperwork Reduction Act of
1980 (Pub. L. 96-511, 44 U.S.C. 3501 et seq.) and have been assigned
OMB Control Number 2050-0053.
IX. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA), Pub. L. 104-4, which was signed into law on March 22, 1995, the
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 the 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. The 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 the 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 the 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.
The EPA finds that this delisting decision is deregulatory in
nature and does not impose any enforceable duty on any State, local, or
tribal governments or the private sector. In addition, the proposed
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.
X. Executive Order 13045
The Executive Order 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 the 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
proposed rule is not subject to Executive Order 13045 because this is
not an economically significant regulatory action as defined by
Executive Order 12866.
XI. Executive Order 13084
Because this action does not involve any requirements that affect
Indian tribes, the requirements of section 3(b) of Executive Order
13084 do not apply.
Under Executive Order 13084, the 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
[[Page 64841]]
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, the EPA must provide to the Office
Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of the 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, Executive Order 13084 requires the EPA to develop an
effective process permitting elected and other representatives of
Indian tribal governments to have ``meaningful and timely input'' in
the development of regulatory policies on matters that significantly or
uniquely affect their communities of Indian tribal governments. This
action does not involve or impose any requirements that affect Indian
tribes. Accordingly, the requirements of section 3(b) of Executive
Order 13084 do not apply to this rule.
XII. National Technology Transfer and Advancement Act
Under section 12(d) if the National Technology Transfer and
Advancement Act, the Agency is directed 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, business practices,
etc.) developed or adopted by voluntary consensus standard bodies.
Where available and potentially applicable voluntary consensus
standards are not used by the EPA, the Act requires that Agency to
provide Congress, through the OMB, an explanation of the reasons for
not using such standards.
This rule 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.
XIII. Executive Order 13132 Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999) requires the EPA to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
Under section 6 of Executive Order 13132, the EPA may not issue a
regulation that has federalism implications, that impose substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by state and local governments, or the EPA
consults with state and local officials early in the process of
developing the proposed regulation. The EPA also may not issue a
regulation that has federalism implications and that preempts state law
unless the Agency consults with state and local officials early in the
process of developing the proposed regulation.
This action does not have federalism implication. It will not have
a substantial direct effect on 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, because it affects only one facility.
Lists 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: November 6, 2003.
Bill Luthans,
Acting Director, Multimedia Planning and Permitting Division.
For the reasons set out in the preamble, 40 CFR part 261 is 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.
2. In Table 2 of Appendix IX of Part 261 add the following waste
stream in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Waste Excluded Under Sec. Sec. 260.20 and
260.22
Table 2.--Waste Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
American Chrome & Chemicals........... Corpus Christi, Texas................. Dewatered sludge (the EPA
Hazardous Waste No. K006)
generated at a maximum
generation of 1450 cubic yards
per calendar year after
[publication date of the final
rule] and disposed in a
Subtitle D landfill.
ACC must implement a
verification program that meets
the following Paragraphs:
(1) Delisting Levels: All
leachable constituent
concentrations must not exceed
the following levels (mg/l).
The petitioner must use the
method specified in 40 CFR
261.24 to measure constituents
in the waste leachate.
Dewatered wastewater sludge:
Arsenic-0.0377; Barium-100.0;
Chromium-5.0; Thallium-0.355;
Zinc-1130.0.
(2) Waste Holding and Handling:
(A) ACC is a 90 day facility and
does not have a RCRA permit,
therefore, ACC must store the
dewatered sludge following the
requirements specified in 40
CFR 262.34, or continue to
dispose of as hazardous all
dewatered sludge generated,
until they have completed
verification testing described
in Paragraph (3), as
appropriate, and valid analyses
show that paragraph (1) is
satisfied.
(B) Levels of constituents
measured in the samples of the
dewatered sludge that do not
exceed the levels set forth in
Paragraph (1) are non-
hazardous. ACC can manage and
dispose the non-hazardous
dewatered sludge according to
all applicable solid waste
regulations.
[[Page 64842]]
(C) If constituent levels in a
sample exceed any of the
delisting levels set in
Paragraph (1), ACC must retreat
the batches of waste used to
generate the representative
sample until it meets the
levels. ACC must repeat the
analyses of the treated waste.
(D) If the facility does not
treat the waste or retreat it
until it meets the delisting
levels in Paragraph (1), ACC
must manage and dispose the
waste generated under Subtitle
C of RCRA.
(E) The dewatered sludge must
pass paint filter test as
described in SW 846, Method
9095 before it is allowed to
leave the facility. ACC must
maintain a record of the actual
volume of the dewatered sludge
to be disposed of-site
according to the requirements
in Paragraph (5).
(3) Verification Testing
Requirements: ACC must conduct
verification testing each time
it decides to evacuate the tank
contents. Four (4)
representative composite
samples shall be collected from
the dewatered sludge. ACC shall
analyze the verification
samples according to the
constituent list specified in
Paragraph (1) and submit the
analytical results to EPA
within 10 days of receiving the
analytical results. If the EPA
determines that the data
collected under this Paragraph
do not support the data
provided for the petition, the
exclusion will not cover the
generated wastes. The EPA will
notify ACC the decision in
writing within two weeks of
receiving this information.
(4) Changes in Operating
Conditions: If ACC
significantly changes the
process described in its
petition or starts any
processes that may or could
affect the composition or type
of waste generated as
established under Paragraph (1)
(by illustration, but not
limitation, changes in
equipment or operating
conditions of the treatment
process), they must notify the
EPA in writing; they may no
longer handle the wastes
generated from the new process
as nonhazardous until the test
results of the wastes meet the
delisting levels set in
Paragraph (1) and they have
received written approval to do
so from the EPA.
(5) Data Submittals: ACC must
submit the information
described below. If ACC fails
to submit the required data
within the specified time or
maintain the required records
on-site for the specified time,
the EPA, at its discretion,
will consider this sufficient
basis to reopen the exclusion
as described in Paragraph 6.
ACC must:
(A) Submit the data obtained
through Paragraph 3 to the
Section Chief, Corrective
Action and Waste Minimization
Section, Environmental
Protection Agency, 1445 Ross
Avenue, Dallas, Texas 75202-
2733, Mail Code, (6PD-C) within
the time specified.
(B) Compile records of operating
conditions and analytical data
from Paragraph (3), summarized,
and maintained on-site for a
minimum of five years.
(C) Furnish these records and
data when the EPA or the State
of Texas request them for
inspection.
(D) Send along with all data a
signed copy of the following
certification statement, to
attest to the truth and
accuracy of the data submitted:
Under civil and criminal penalty
of law for the making or
submission of false or
fraudulent statements or
representations (pursuant to
the applicable provisions of
the Federal Code, which
include, but may not be limited
to, 18 U.S.C. 1001 and 42
U.S.C. 6928), I certify that
the information contained in or
accompanying this document is
true, accurate and complete.
As to the (those) identified
section(s) of this document for
which I cannot personally
verify its (their) truth and
accuracy, I certify as the
company official having
supervisory responsibility for
the persons who, acting under
my direct instructions, made
the verification that this
information is true, accurate
and complete.
If any of this information is
determined by the EPA in its
sole discretion to be false,
inaccurate or incomplete, and
upon conveyance of this fact to
the company, I recognize and
agree that this exclusion of
waste will be void as if it
never had effect or to the
extent directed by the EPA and
that the company will be liable
for any actions taken in
contravention of the company's
RCRA and CERCLA obligations
premised upon the company's
reliance on the void exclusion.
(6) Reopener:
(A) If, anytime after disposal
of the delisted waste, ACC
possesses or is otherwise made
aware of any environmental data
(including but not limited to
leachate data or ground water
monitoring data) or any other
data relevant to the delisted
waste indicating that any
constituent identified for the
delisting verification testing
is at level higher than the
delisting level allowed by the
Division Director in granting
the petition, then the facility
must report the data, in
writing, to the Division
Director within 10 days of
first possessing or being made
aware of that data.
(B) If the verification testing
of the waste does not meet the
delisting requirements in
Paragraph 1, ACC must report
the data, in writing, to the
Division Director within 10
days of first possessing or
being made aware of that data.
(C) If ACC fails to submit the
information described in
paragraphs (5),(6)(A) or (6)(B)
or if any other information is
received from any source, the
Division Director 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.
(D) If the Division Director
determines that the reported
information does require Agency
action, the Division Director
will notify the facility in
writing of the actions the
Division Director 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. The facility shall
have 10 days from the date of
the Division Director's notice
to present such information.
[[Page 64843]]
(E) Following the receipt of
information from the facility
described in paragraph (6)(D)
or (if no information is
presented under paragraph
(6)(D)) the initial receipt of
information described in
paragraphs (5), (6)(A) or
(6)(B), the Division Director
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 Division Director's
determination shall become
effective immediately, unless
the Division Director provides
otherwise.
(7) Notification Requirements:
ACC must do the following
before transporting the
delisted waste: Failure to
provide this notification will
result in a violation of the
delisting petition and a
possible revocation of the
decision.
(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. If ACC transports
the excluded waste to or
manages the waste in any state
with delisting authorization,
ACC must obtain delisting
authorization from that state
before it can manage the waste
as nonhazardous in the state.
(B) Update the one-time written
notification if they ship the
delisted waste to a different
disposal facility.
(C) Failure to provide the
notification will result in a
violation of the delisting
variance and a possible
revocation of the Exclusion.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[FR Doc. 03-28650 Filed 11-14-03; 8:45 am]
BILLING CODE 6560-50-P