[Federal Register: April 15, 2009 (Volume 74, Number 71)]
[Rules and Regulations]
[Page 17419-17423]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ap09-20]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R06-RCRA-2008-0457; SW-FRL-8787-8]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Final Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: Environmental Protection Agency (EPA) is granting a petition
submitted by Cooper Crouse-Hinds to exclude (or delist) the sludge and
filter sand (called sludge hereinafter) from its wastewater treatment
plant (WWTP) generated by Cooper Crouse-Hinds in Amarillo, Texas from
the lists of hazardous wastes. This final rule responds to the petition
submitted by Cooper Crouse-Hinds, to delist the WWTP sludge with
Hazardous Waste Number, F006. After careful analysis and use of the
Delisting Risk Assessment Software (DRAS), EPA has concluded the
petitioned waste is not hazardous waste. This exclusion applies to 816
cubic yards per year of the WWTP sludge with Hazardous Waste Number:
F006. Accordingly, this final rule excludes the petitioned waste from
the requirements of hazardous waste regulations under the Resource
Conservation and Recovery Act (RCRA) when it is disposed in a Subtitle
D Landfill.
DATES: Effective Date: April 15, 2009.
ADDRESSES: The public docket for this final rule is located at the
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas,
Texas 75202, and is available for viewing in EPA Freedom of Information
Act review room on the 7th floor from 8 a.m. to 4 p.m., Monday through
Friday, excluding Federal holidays. Call (214) 665-6444 for
appointments. The reference number for this docket is EPA-R06-RCRA-
2008-0457. 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: Ben Banipal, Section Chief of the
Corrective Action and Waste Minimization Section, Multimedia Planning
and Permitting Division (6PD-C), Environmental Protection Agency Region
6, 1445 Ross Avenue, Dallas, Texas 75202. For technical information
concerning this notice, contact Youngmoo Kim, Environmental Protection
Agency Region 6, 1445 Ross Avenue, (6PD-C), Dallas, Texas 75202, at
(214) 665-6788, or kim.youngmoo@epa.gov.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What action is EPA finalizing?
B. Why is EPA approving this action?
C. What are the limits of this exclusion?
D. How will Cooper Crouse-Hinds manage the waste if it is
delisted?
E. When is the final delisting exclusion effective?
F. How does this final rule affect states?
II. Background
A. What is a delisting?
B. What regulations allow facilities to delist a waste?
C. What information must the generator supply?
III. EPA's Evaluation of the Waste Information and Data
A. What waste did Cooper Crouse-Hinds petition EPA to delist?
B. How much waste did Cooper Crouse-Hinds propose to delist?
C. How did Cooper Crouse-Hinds sample and analyze the waste data
in this petition?
IV. Public Comments Received on the Proposed Exclusion
A. Who submitted comments on the proposed rule?
V. Statutory and Executive Order Reviews
I. Overview Information
A. What action is EPA finalizing?
After evaluating the petition, EPA proposed on September 23, 2008,
to exclude the WWTP sludge from the lists of hazardous waste under 40
CFR 261.31 and 261.32 (see 73 FR 54770). EPA is finalizing the decision
to grant Cooper Crouse-Hinds' delisting petition to have its WWTP
sludge managed and disposed as non-hazardous waste provided certain
verification and monitoring conditions are met.
B. Why is EPA approving this action?
Cooper Crouse-Hinds' petition requests a delisting from the F006
waste listing under 40 CFR 260.20 and 260.22. Cooper Crouse-Hinds does
not believe that the petitioned waste meets the criteria for which EPA
listed it. Cooper Crouse-Hinds 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. 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 evaluated the petitioned waste against the listing
criteria and factors cited in Sec. 261.11(a) (2) and (a)(3). Based on
this review, EPA agrees with the petitioner that the waste is non-
hazardous 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 as originally listed, EPA would have
proposed to deny the petition. 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. 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. EPA believes that the petitioned waste does not meet the
listing criteria and thus should not be a listed waste. EPA's final
decision to delist waste from Cooper Crouse-Hinds' facility is based on
the
[[Page 17420]]
information submitted in support of this rule, including descriptions
of the wastes and analytical data from the Amarillo, Texas facility.
C. What are the limits of this exclusion?
This exclusion applies to the waste described in the petition only
if the requirements described in 40 CFR part 261, Appendix IX, Table 1
and the conditions contained herein are satisfied.
D. How will Cooper Crouse-Hinds manage the waste if it is delisted?
The sludge from Cooper Crouse-Hinds will be disposed of in a RCRA
Subtitle D landfill.
E. When is the final delisting exclusion effective?
This rule is effective April 15, 2009. The Hazardous and Solid
Waste Amendments of 1984 amended Section 3010 of RCRA, 42 U.S.C.
6930(b)(1) allows rules to become effective 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 U.S.C. 553(d).
F. How does this final rule affect states?
Because EPA is issuing this exclusion under the Federal RCRA
delisting program, only states subject to Federal RCRA delisting
provisions will be affected. This would exclude states which have
received authorization from EPA to make their own delisting decisions.
EPA allows states to impose their own non-RCRA regulatory
requirements that are more stringent than 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, EPA urges petitioners to contact the State regulatory authority
to establish the status of their wastes under the State law.
EPA has also authorized some states (for example, Louisiana,
Oklahoma, Georgia, and 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 Cooper Crouse-Hinds transports the petitioned waste to or manages
the waste in any state with delisting authorization, Cooper Crouse-
Hinds must obtain delisting authorization from that state before it can
manage the waste as non-hazardous in the 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, certain wastes the generator believes should
not be considered hazardous under RCRA.
B. What regulations allow facilities to delist a waste?
Under Sec. Sec. 260.20 and 260.22, facilities may petition 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 40 CFR parts 260
through 265 and 268. 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?
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. Based
on the information supplied by the generator, the Administrator must
determine whether factors (including additional constituents) other
than those for which the waste was listed could cause the waste to be a
hazardous waste. The generator must also supply information to
demonstrate that the waste does not exhibit any of the characteristics
defined in Sec. 261.21-Sec. 261.24.
III. EPA's Evaluation of the Waste Information and Data
A. What waste did Cooper Crouse-Hinds petition EPA to delist?
On March 13, 2008, Cooper Crouse-Hinds petitioned EPA to exclude
from the lists of hazardous wastes contained in Sec. Sec. 261.31 and
261.32, WWTP sludge listed as F006 generated by its facility located in
Amarillo, Texas. The waste falls under the classification of listed
waste pursuant to Sec. 261.31.
B. How much waste did Cooper Crouse-Hinds propose to delist?
Specifically, in its petition, Cooper Crouse-Hinds requested that
EPA grant an exclusion for 816 cubic yards per year of WWTP sludge.
C. How did Cooper Crouse-Hinds sample and analyze the waste data in
this petition?
To support its petition, Cooper Crouse-Hinds submitted:
Historical information on waste generation and management
practices;
Results of the total constituents list for 40 CFR part
264, Appendix IX volatile and semi-volatile organic compounds and
metals. These wastes were also analyzed for cyanide and sulfide.
Results of the constituent list for appendix IX on
Toxicity Characteristic Leaching Procedure (TCLP) extract for
volatiles, semi-volatiles, and metals.
Results from total oil and grease analyses and multiple pH
measurements, and
Results from four samples for total concentrations of
compounds of concern (COCs).
IV. Public Comments Received on the Proposed Exclusion
A. Who submitted comments on the proposed rule?
No comments were received on the Proposed Rule during the comment
period.
V. 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
[[Page 17421]]
final 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 final 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 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 today's 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: March 13, 2009.
Connie Suttice,
Acting Director, Multimedia Planning and Permitting Division Region 6.
0
For the reasons set out in the preamble, 40 CFR part 261 is amended as
follows:
PART 261--IDENTIFICATION AND LISTING OF 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, 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:
Appendix IX to Part 261--Waste Excluded Under Sec. Sec. 260.20 and
260.22
Table 1--Waste Excluded From Non-Specific Sources
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Facility Address Waste description
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* * * * * * *
Cooper Crouse-Hinds................... Amarillo, TX.................. Wastewater Treatment Sludge (Hazardous
Waste No. F006) generated at a maximum
annual rate of 816 cubic yards per
calendar year after April 15, 2009 and
disposed in Subtitle D Landfill.
For the exclusion to be valid, Cooper
Crouse-Hinds must implement a
verification testing program that meets
the following Paragraphs:
(1) Delisting Levels: All concentrations
for those constituents must not exceed
the maximum allowable concentrations in
mg/l specified in this paragraph.
WWTP Sludge Leachable Concentrations (mg/
l):
(i) Inorganic Constituents:
Arsenic-0.0759; Barium-100; Cadmium-
0.819; Copper-216; Iron-1.24;
Manganese-145; Nickel-119; Zinc-18.
(ii) Organic Constituents:
Benzene-0.5.
(2) Waste Holding and Handling:
(A) Waste classification as non-
hazardous can not begin until
compliance with the limits set in
paragraph (1) for WWTP sludge has
occurred for two consecutive quarterly
sampling events.
(B) If constituent levels in any sample
taken by Cooper Crouse-Hinds exceed any
of the delisting levels set in
paragraph (1) for the WWTP sludge,
Cooper Crouse-Hinds must do the
following:
(i) Notify EPA in accordance with
paragraph (6) and
(ii) Manage and dispose WWTP sludge
as hazardous waste generated under
Subtitle C of RCRA.
(3) Testing Requirements:
Upon this exclusion becoming final,
Cooper Crouse-Hinds may perform
quarterly analytical testing by
sampling and analyzing the WWTP sludge
as follows:
(A) Quarterly Testing:
[[Page 17422]]
(i) Collect two representative
composite samples of the sludge at
quarterly intervals after EPA grants
the final exclusion. The first
composite samples may be taken at
any time after EPA grants the final
approval. Sampling must be performed
in accordance with the sampling plan
approved by EPA in support of the
exclusion.
(ii) Analyze the samples for all
constituents listed in paragraph
(1). Any composite sample taken that
exceeds the delisting levels listed
in paragraph (1) for the sludge must
be disposed as hazardous waste in
accordance with the applicable
hazardous waste requirements.
(iii) Within thirty (30) days after
taking its first quarterly sample,
Cooper Crouse-Hinds will report its
first quarterly analytical test data
to EPA. If levels of constituents
measured in the samples of the
sludge do not exceed the levels set
forth in paragraph (1) of this
exclusion for two consecutive
quarters, Cooper Crouse-Hinds can
manage and dispose the non-hazardous
WWTP sludge according to all
applicable solid waste regulations.
(B) Annual Testing:
(i) If Cooper Crouse-Hinds completes
the quarterly testing specified in
paragraph (3) above and no sample
contains a constituent at a level
which exceeds the limits set forth
in paragraph (1), Cooper Crouse-
Hinds may begin annual testing as
follows: Cooper Crouse-Hinds must
test two representative composite
samples of the WWTP sludge for all
constituents listed in paragraph (1)
at least once per calendar year.
(ii) The samples for the annual
testing shall be a representative
composite sample according to
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. Methods must
meet Performance Based Measurement
System Criteria in which the Data
Quality Objectives are to
demonstrate that samples of the WWTP
sludge is representative for all
constituents listed in paragraph
(1).
(iii) The samples for the annual
testing taken for the second and
subsequent annual testing events
shall be taken within the same
calendar month as the first annual
sample taken.
(iv) The annual testing report should
include the total amount of delisted
waste in cubic yards disposed as non-
hazardous waste during the calendar
year.
(4) Changes in Operating Conditions: If
Cooper Crouse-Hinds significantly
changes the process described in its
petition or starts any processes that
generate(s) the waste that may or could
affect the composition or type of waste
generated (by illustration, but not
limitation, changes in equipment or
operating conditions of the treatment
process), it must notify EPA in writing
and it may no longer handle the wastes
generated from the new process as non-
hazardous until the wastes meet the
delisting levels set in paragraph (1)
and it has received written approval to
do so from EPA.
Cooper Crouse-Hinds must submit a
modification to the petition, complete
with full sampling and analysis, for
circumstances where the waste volume
changes and/or additional waste codes
are added to the waste stream, if it
wishes to dispose of the material as
non-hazardous.
(5) Data Submittals:
Cooper Crouse-Hinds must submit the
information described below. If Cooper
Crouse-Hinds 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). Cooper Crouse-Hinds must:
(A) Submit the data obtained through
paragraph (3) to the Chief, Corrective
Action and Waste Minimization Section,
Multimedia Planning and Permitting
Division, U. S. Environmental
Protection Agency Region 6, 1445 Ross
Ave., Dallas, Texas, 75202, within the
time specified. All supporting data can
be submitted on CD-ROM or comparable
electronic media.
(B) Compile records of analytical data
from paragraph (3), summarized, and
maintained on-site for a minimum of
five years.
(C) Furnish these records and data when
either EPA or the State of Texas
requests 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.
[[Page 17423]]
``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) Re-opener:
(A) If, anytime after disposal of the
delisted waste Cooper Crouse-Hinds
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 either the quarterly or annual
testing of the waste does not meet the
delisting requirements in paragraph
(1), Cooper Crouse-Hinds 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 Cooper Crouse-Hinds 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 EPA 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 the Division Director determines
that the reported information requires
action by EPA, 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 EPA action is not
necessary. The facility shall have 10
days from the date of the Division
Director'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), the Division Director will
issue a final written determination
describing EPA actions that are
necessary to protect human health and/
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:
Cooper Crouse-Hinds 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 variance and a possible
revocation of the decision.
* * * * * * *
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[FR Doc. E9-8651 Filed 4-14-09; 8:45 am]
BILLING CODE 6560-50-P