[Federal Register Volume 73, Number 185 (Tuesday, September 23, 2008)]
[Rules and Regulations]
[Pages 54713-54717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22170]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R06-RCRA-2008-0455; SW-FRL-8713-3]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Final Rule
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is issuing a final
rule to add the name of Structural Metals, Inc, to the exclusion
granted to Conversion Systems Inc., (CSI) on June 13, 1995. As
described in the exclusion issued to CSI in paragraph (1)(B), the
Agency shall add the location of the treatment facility and the name of
the steel mill contracting CSI's services. This rule adds the location
of U.S. Ecology, Texas Ecology in Robstown, Texas as the treatment
facility and Structural Metals, Inc. as the steel mill contracting the
services of CSI. This rule also updates the 1995 exclusion to include
Paragraphs (6) and (7), the Delisting Reopener language and
Notification Requirements; and other updates regarding the disposal and
submission of Quality Assurance Plan prior to submission of data for a
new facility.
DATES: This rule is effective September 23, 2008.
ADDRESSES: The public docket for this direct final rule is located at
1445 Ross Avenue in the FOIA Review Room, identified by Docket ID No.
EPA-R06-RCRA-2008-0455. All documents in the electronic docket are
listed in the http://www.regulations.gov index. Although listed in the
index, some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available either
electronically in http://www.regulations.gov or in hard copy at the
Environmental Protection Agency, RCRA Branch, 1445 Ross Avenue, Dallas,
TX 75202. The hard copy RCRA regulatory docket for this direct final
rule, EPA-R06-RCRA-2008-0455, is available for viewing from 9 a.m. to 4
p.m., Monday through Friday, excluding Federal holidays. The public may
copy material from the regulatory docket at $0.15 per page. EPA
requests that you contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to schedule your inspection. The interested
persons wanting to examine these documents should make an appointment
with the office at least 24 hours in advance. The public may copy
material from any regulatory docket at no cost for the first 100 pages
and at a cost of $0.15 per page for additional copies.
FOR FURTHER INFORMATION CONTACT: For further technical information
concerning this document or for appointments to view the docket,
contact Michelle Peace, Environmental Protection Agency, Multimedia
Planning and Permitting Division, RCRA Branch, Mail Code: 6PD-C, 1445
Ross Avenue, Dallas, TX 75202, by calling 214-665-7430 or by e-mail at
[email protected].
SUPPLEMENTARY INFORMATION: On June 13, 1995 (60 FR 31107), EPA
finalized a conditional multiple site exclusion to Conversion Systems
Inc., in Horsham, Pennsylvania. In 1995, CSI petitioned EPA for a
multiple site exclusion for chemically stabilized electric arc furnace
dust (CSEAFD) resulting from the Super DetoxTM process as
modified by CSI. The original Super DetoxTM
[[Page 54714]]
process was developed by Bethlehem Steel Corporation and used at its
Johnstown and Steelton, Pennsylvania facilities. Specifically, CSI was
granted the exclusion for CSEAFD generated at the existing Sterling,
Illinois facility at Northwestern Steel and future facilities to be
constructed. CSI initially planned to construct twelve other facilities
nationwide. The resulting CSEAFD is classified as K061 hazardous waste
by virtue of the derived from rule.
On March 20, 2006, CSI submitted a K061 Delisting Initial
Verification Testing Report to EPA Region 6 in accordance with
paragraph 1(A) of the exclusion. It lists Structural Metals Inc, as the
new source and U.S. Ecology in Robstown, TX as the treatment location.
The data package included sampling results from four (4) representative
composite samples of the waste. This data was reviewed by EPA and also
evaluated using the Delisting Risk Assessment Software (DRAS) currently
used to evaluate new petitions. All constituent concentrations are
below the delisting levels published in the exclusion and meet the
current DRAS delisting exit levels.
The Agency is also taking this time to update the 1995 CSI
exclusion to make the following corrections and additions to the
exclusion:
(1) The address of the CSI facility has changed from Horsham, PA
and is now located in Willow Grove, PA;
(2) Reports should be submitted to the appropriate Regional
Director or his/her designee and no longer the EPA Administrator;
(3) New facilities added to this petition should submit and get EPA
approval of their Quality Assurance Project Plans for the verification
testing prior to requesting addition to the existing petition; and
(4) Paragraphs (6) and (7) are added to the exclusion language.
The purpose of paragraph (6), the Delisting Reopener Language, is
to require the facility 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. The petitioner must also use this
procedure, if the waste samples fail to meet the levels found in
paragraph (3). This provision will allow EPA to reevaluate the
exclusion, if a source provides new or additional information to EPA.
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 EPA to deny the
petition, if presented.
This provision expressly requires the petitioner to report
differing site conditions or assumptions used in the petition.
Additionally, it requires the petitioner to report within 10 days of
discovery, instances where testing indicates that delisting levels were
not achieved and the waste was subsequently managed as non-hazardous
waste. If 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.
It is EPA's position that it has the authority under RCRA and the
Administrative Procedure Act (APA), 5 U.S.C. 551, et seq., to reopen a
delisting decision. EPA may reopen a delisting decision when it
receives new information that calls into question the assumptions
underlying the delisting.
EPA believes a clear statement of its authority in delisting is
merited in light of EPA's experience. See the Federal Register notice
regarding 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 into the environment than the concentrations predicted
when conducting the TCLP, leading EPA to repeal the delisting. If an
immediate threat to human health and the environment presents itself,
EPA will continue to address these situations on a case-by-case basis.
Where necessary, EPA will make a good cause finding to justify
emergency rulemaking. See APA section 553 (b)(3)(B).
EPA is also adding paragraph (7), Notification Requirements. The
treatment facility is required to notify State environmental agencies
at least 60 days before beginning the transport and disposal of
delisted wastes. This notification would be require for the state where
the treated waste is generated as well as states through which the
waste is transported and disposed.
Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this rule is not of general applicability
and therefore is not a regulatory action subject to review by the
Office of Management and Budget (OMB). 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.) because it applies to a
particular facility only. Because this rule is 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, 204, and 205 of the
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because
this rule will affect only a particular facility, it will not
significantly or uniquely affect small governments, as specified in
section 203 of UMRA. Because this rule will affect only a particular
facility, this proposed rule does not have federalism implications. It
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, ``Federalism,'' (64
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply
to this rule. Similarly, because this rule will affect only a
particular facility, this proposed rule does not have tribal
implications, as specified in Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments'' (65 FR 67249, November 9,
2000). Thus, Executive Order 13175 does not apply to this rule. This
rule also is not subject to Executive Order 13045, ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant as
defined in Executive Order 12866, and because the Agency does not have
reason to believe the environmental health or safety risks addressed by
this action present a disproportionate risk to children. The basis for
this belief is that the Agency used the DRAS program, which considers
health and safety risks to infants and children, to calculate the
maximum allowable concentrations for this rule. This rule is not
subject to Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866. 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 note) do
not apply. As required by section 3 of Executive Order 12988, ``Civil
Justice Reform,'' (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
[[Page 54715]]
affected conduct. The Congressional Review Act, 5 U.S.C. 801 et seq.,
as added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report which includes a copy
of the rule to each House of the Congress and to the Comptroller
General of the United States. Section 804 exempts from section 801 the
following types of rules: (1) Rules of particular applicability; (2)
rules relating to agency management or personnel; and (3) rules of
agency organization, procedure, or practice that do not substantially
affect the rights or obligations of non-agency parties 5 U.S.C. 804(3).
EPA is not required to submit a rule report regarding this action under
section 801 because this is a rule of particular applicability.
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: August 29, 2008.
Bill Luthans,
Acting Director, Multimedia Planning and Permitting Division, EPA
Region 6.
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For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
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1. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922 and 6938.
0
2. Appendix IX to Part 261, Table 2--Wastes Excluded from Specific
Sources is amended by adding the following entry in alphabetical order
to ``Conversion Systems Inc.,'' to read as follows:
Appendix IX to Part 261--Wastes Excluded Under Sec. Sec. 260.20 and
260.22
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Table 2--Wastes Excluded From Specific Sources
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Facility Address Waste description
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Conversion Systems, Inc................. Willow Grove, PA........... Chemically Stabilized Electric Arc
Furnace Dust (CSEAFD) that is generated
by Conversion Systems Inc. (CSI) using
the Super Detox\TM\ process as modified
by CSI to treat EAFD (EPA Hazardous
Waste No. K061) at the following sites
and that is disposed of in Subtitle C
landfills:
Northwestern Steel, Sterling, Illinois
after June 13, 1995.
Structural Metals, Inc. treated at U.S.
Ecology, Robstown, Texas after September
23, 2008.
(1) Verification Testing Requirements:
Sample collection and analyses,
including quality control procedures
must be performed using appropriate
methods. As applicable to the method-
defined parameters of concern, analyses
requiring the use of SW-846 methods
incorporated by reference in 40 CFR
260.11 must be used without
substitution. As applicable, the SW-846
methods might include Methods 0010,
0011, 0020, 0023A, 0030, 0031, 0040,
0050, 0051, 0060, 0061, 1010A, 1020B,
1110A, 1310B, 1311, 1312, 1320, 1330A,
9010C, 9012B, 9040C, 9045D, 9060A, 9070A
(uses EPA Method 1664, Rev. A), 9071B,
and 9095B.
(A) Initial Verification Testing: During
the first 20 operating days of full
scale operation of a newly constructed
Super Detox\TM\ treatment facility, CSI
must analyze a minimum of four (4)
composite samples of CSEAFD
representative of the full 20-day
period. Composites must be comprised of
representative samples collected from
every batch generated. The CSEAFD
samples must be analyzed for the
constituents listed in Condition (3).
CSI must report the operational and
analytical test data, including quality
control information, obtained during
this initial period no later than 60
days after the generation of the first
batch of CSEAFD.
(B) Addition of New Super Detox\TM\
Treatment Facilities to Exclusion: If
the Agency's review of the data obtained
during initial verification testing
indicates that the CSEAFD generated by a
specific Super Detox\TM\ treatment
facility consistently meets the
delisting levels specified in Condition
(3), the Agency will publish a notice
adding to this exclusion the location of
the new Super Detox\TM\ treatment
facility and the name of the steel mill
contracting CSI's services. If the
Agency's review of the data obtained
during initial verification testing
indicates that the CSEAFD generated by a
specific Super Detox\TM\ treatment
facility fails to consistently meet the
conditions of this exclusion, the Agency
will not publish the notice adding the
new facility.
(C) Subsequent Verification Testing: For
the Sterling, Illinois facility and any
new facility subsequently added to CSI's
conditional multiple-site exclusion, CSI
must collect and analyze at least one
composite sample of CSEAFD each month.
The composite samples must be composed
of representative samples collected from
all batches treated in each month. The
composite samples must be composed
representative samples collected from
all batches treated in each month. These
monthly representative samples must be
analyzed, prior to disposal of the
CSEAFD, for the constituents listed in
Condition (3). CSI may, at its
discretion, analyze composite samples
gathered more frequently to demonstrate
that smaller batches of waste are non-
hazardous.
(2) Waste Holding and Handling: CSI must
store as hazardous all CSEAFD generated
until verification testing as specified
in Conditions (1)(A) and (1)(C), as
appropriate, is completed and valid
analyses demonstrate that Condition (3)
is satisfied. If the levels of
constituents measured in the samples of
CSEAFD do not exceed the levels set
forth in Condition (3), then the CSEAFD
is non-hazardous and may be managed and
disposed of in Subtitle D landfills. If
constituent levels in a sample exceed
any of the delisting levels set in
Condition (3), the CSEAFD generated
during the time period corresponding to
this sample must be retreated until it
meets these levels, or managed and
disposed of in accordance with Subtitle
C of RCRA. CSEAFD generated by a new CSI
treatment facility must be managed as a
hazardous waste prior to the addition of
the name and location of the facility to
the exclusion. After addition of the new
facility to the exclusion, CSEAFD
generated during the verification
testing in Condition (1)(A) is also non-
hazardous, if the delisting levels in
Condition (3) are satisfied.
[[Page 54716]]
(3) Delisting Levels: All leachable
constituents for those metals must not
exceed the following levels (ppm):
Antimony-0.06; Arsenic-0.50; Barium-7.6;
Beryllium-0.010; Cadmium-0.050; Chromium-
0.33; Lead-0.15; Mercury-0.009; Nickel-
1.00; Selenium-0.16; Silver-0.30;
Thallium-0.020; Vanadium-2.0; Zinc-70.
Metal concentrations must be measured in
the waste leachate by the method
specified in 40 CFR 261.24.
(4) Changes in Operating Conditions:
After initiating subsequent testing
described in Condition (1)(C), if CSI
significantly changes the stabilization
process established under Condition (1)
(e.g., use of new stabilization
reagents), CSI must notify the Agency in
writing. After written approval by EPA,
CSI may handle CSEAFD generated from the
new process as non-hazardous, if the
wastes meet the delisting levels set in
Condition (3).
(5) Data Submittals: CSI must submit the
information described below. If CSI
fails to submit the required data within
the specified time or maintain the
required records on-site for the
specified time, EPA, at its discretion,
will consider this sufficient basis to
reopen the exclusion as described in
paragraph (6). CSI must:
(A) At least one month prior to operation
of a new Super Detox\TM\ treatment
facility, CSI must notify, in writing,
the EPA Regional Administrator or his
designee, when the new Super Detox\TM\
treatment facility is scheduled to be on-
line. The data obtained through
paragraph 1(A) must be submitted to the
Regional Administrator or his designee
within the time period specified. All
supporting data can be submitted on CD-
ROM or some comparable electronic media.
(B) CSI shall submit and receive EPA
approval of the Quality Assurance
Project Plan for data collection for
each new facility added to this
exclusion prior to conducting sampling
events in paragraph 1(A).
(C) Compile records of analytical data
from paragraph (3), summarized, and
maintained on-site for a minimum of five
years.
(D) Furnish these records and data when
either EPA or the State agency requests
them for inspection.
(E) 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 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 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 CSI, the
treatment facility, or the steel mill
possess or is otherwise made aware of
any data (including but not limited to
leachate data or ground water monitoring
data) relevant to the delisted waste
indicating that any constituent
identified for the delisting
verification testing is at a level
higher than the delisting level allowed
by EPA in granting the petition, then
the facility must report the data, in
writing, to EPA within 10 days of first
possessing or being made aware of that
data.
(B) If subsequent verification testing of
the waste as required by paragraph 1(C)
does not meet the delisting requirements
in paragraph 3 and the waste is
subsequently managed as non-hazardous
waste, CSI must report the data, in
writing, to EPA within 10 days of first
possessing or being made aware of that
data.
(C) If CSI fails to submit the
information described in paragraphs (5),
(6)(A) or (6)(B) or if any other
information is received from any source,
EPA will make a preliminary
determination as to whether the reported
information requires action to protect
human health and/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 EPA determines that the reported
information requires action, EPA will
notify the facility in writing of the
actions it 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
explaining why the proposed EPA action
is not necessary. The facility shall
have 10 days from the date of EPA's
notice to present such information.
(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), EPA
will issue a final written determination
describing the actions that are
necessary to protect human health and/or
the environment. Any required action
described in EPA's determination shall
become effective immediately, unless EPA
provides otherwise.
(7) Notification Requirements: CSI or the
treatment facility 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 it will
transport the delisted waste described
above for disposal, 60 days before
beginning such activities.
(B) Update the one-time written
notification if it ships the delisted
waste into a different disposal
facility.
(C) Failure to provide this notification
will result in a violation of the
delisting exclusion and a possible
revocation of the decision.
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[FR Doc. E8-22170 Filed 9-22-08; 8:45 am]
BILLING CODE 6560-50-P