[Federal Register Volume 76, Number 18 (Thursday, January 27, 2011)]
[Rules and Regulations]
[Pages 4823-4827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1768]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R05-RCRA-2010-0843; SW-FRL-9259-1]
Hazardous Waste Management System; Identifying and Listing
Hazardous Waste Exclusion
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA (also, ``the Agency'' or ``we'' in this preamble) is
granting a petition submitted by Owosso Graphic Arts Inc. (OGAI), in
Owosso, Michigan to exclude (or ``delist'') up to 244 cubic yards of
wastewater treatment sludge per year from the list of hazardous wastes.
The Agency has decided to grant the petition based on an evaluation
of waste-specific information provided by OGAI and a consideration of
public comments received. This action conditionally excludes the
petitioned waste from the requirements of hazardous waste regulations
under the Resource Conservation and Recovery Act (RCRA) when disposed
of in a Subtitle D landfill permitted, licensed, or registered by a
State to manage industrial solid waste. The rule also imposes testing
conditions for waste generated in the future to ensure that this waste
continues to qualify for delisting.
DATES: This final rule is effective on January 27, 2011.
[[Page 4824]]
ADDRESSES: EPA has established a docket for this action under Docket ID
No. [EPA-R05-RCRA-2010-0843]. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through http://www.regulations.gov or in hard copy at
the Records Center, 7th floor, U.S. EPA Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604. This facility is open from 8:30
a.m. to 4 p.m., Monday through Friday, excluding legal holidays. We
recommend you telephone Christopher Lambesis at (312) 886-3583 before
visiting the Region 5 office. The public may copy material from the
regulatory docket at 15 cents per page.
FOR FURTHER INFORMATION CONTACT: Christopher Lambesis, Land and
Chemicals Division, (Mail Code: LR-8J), EPA Region 5, 77 West Jackson
Boulevard, Chicago, IL 60604; telephone number: (312) 886-3583; fax
number: (312) 692-2195; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Background
A. What is a delisting petition?
B. What regulations allow a waste to be delisted?
II. OGAI's Petition
A. What waste did OGAI petition to delist?
B. What information was submitted in support of this petition?
III. EPA's Evaluation and Public Comments
A. What decision is EPA finalizing and why?
B. Public Comments Received and EPA's Response
IV. Final Rule
A. What are the terms of this exclusion?
B. When is the delisting effective?
C. How does this action affect the States?
V. Statutory and Executive Order Reviews
I. Background
A. What is a delisting petition?
A delisting petition is a request from a generator to exclude waste
from the list of hazardous wastes under RCRA regulations. In a
delisting petition, the petitioner must show that waste generated at a
particular facility does not meet any of the criteria for which EPA
listed the waste as set forth in 40 CFR 261.11 and the background
document for the waste. In addition, a petitioner must demonstrate that
the waste does not exhibit any of the hazardous waste characteristics
(that is, ignitability, reactivity, corrosivity, and toxicity) and must
present sufficient information for us to decide whether factors other
than those for which the waste was listed warrant retaining it as a
hazardous waste. See 40 CFR 260.22, 42 United States Code (U.S.C.)
6921(f) and the background documents for a listed waste.
A generator remains obligated under RCRA to confirm that its waste
remains nonhazardous based on the hazardous waste characteristics even
if EPA has ``delisted'' the wastes and to ensure that future generated
wastes meet the conditions set.
B. What regulations allow a waste to be delisted?
Under 40 CFR 260.20, 260.22, and 42 U.S.C. 6921(f), facilities may
petition the EPA to remove their wastes from hazardous waste control by
excluding them from the lists of hazardous wastes contained in 40 CFR
261.31 and 261.32. Specifically, 40 CFR 260.20 allows any person to
petition the Administrator to modify or revoke any provision of parts
260 through 266, 268, and 273 of 40 CFR. 40 CFR 260.22 provides a
generator the opportunity to petition the Administrator to exclude a
waste from the lists of hazardous wastes on a ``generator specific''
basis.
II. OGAI's Petition
A. What waste did OGAI petition EPA to delist?
In May 2005, OGAI petitioned EPA to exclude an annual volume of 244
cubic yards of F006 wastewater treatment sludges generated at its
facility located in Owosso, Michigan from the list of hazardous wastes
contained in 40 CFR 261.31. OGAI generates this wastewater treatment
sludge from spent solutions that were used for chemical etching of
magnesium plates and claims that it does not meet the criteria for
which F006 was listed (i.e., cadmium, hexavalent chromium, nickel and
complexed cyanide) and that there are no other factors which would
cause the waste to be hazardous.
B. What information was submitted in support of this petition?
OGAI submitted detailed descriptions of the process generating the
waste including Material Safety Data Sheets (MSDSs) and other
information regarding the makeup of materials contributing to the
sludge. OGAI also asserted that its waste does not meet the criteria
for which F006 waste was listed and there are no other factors that
might cause the waste to be hazardous.
To support its assertion that the waste is not hazardous, OGAI
collected numerous samples of the waste for analysis. Sample collection
and chemical analysis were conducted in accordance with a pre-approved
sampling plan. The data was validated and any deviations from the
sampling plan were reviewed and documented. The data was assessed for
its intended use and, in some instances, additional samples were
collected or analysis performed to confirm the data were of sufficient
quality.
III. EPA's Evaluation and Public Comments
A. What decision is EPA finalizing and why?
Today the EPA is finalizing an exclusion for up to 244 cubic yards
of wastewater treatment sludge generated annually at the OGAI facility
in Owosso, Michigan. OGAI petitioned EPA to exclude, or delist, the
wastewater treatment sludge because OGAI believed that the petitioned
waste does not meet the criteria for which it was listed and that there
are no additional constituents or factors which could cause the waste
to be hazardous. Review of this petition included consideration of the
original listing criteria, as well as the additional factors required
by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See Sec.
222 of HSWA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(2)-(4).
On November 4, 2010, EPA proposed to exclude or delist the
wastewater treatment sludge generated at OGAI's facility from the list
of hazardous wastes in 40 CFR 261.31 and accepted public comment on the
proposed rule (75 FR 67919). EPA considered all comments received, and
for reasons stated in both the proposal and this document, we believe
that the wastewater treatment sludge from OGAI's facility should be
excluded from hazardous waste control.
B. Public Comments Received and EPA's Response
EPA received one public comment expressing concern over temporal
variability of the waste and the potential for data manipulation. In
response, we believe OGAI and EPA adequately addressed these concerns
in the preparation of the petition. OGAI sampled the waste 15 different
times over a span of almost six years. All samples were collected in
accordance with an EPA-approved sampling plan or under specific
approval of Agency scientists. EPA and OGAI responded to two changes in
process chemicals with
[[Page 4825]]
additional rounds of sampling and all data were scrutinized for
adequacy by independent validation. Several issues with quality
assurance were documented and corrective measures implemented.
Conservative assumptions were applied to the data before use to
ensure the safety of the waste such as: assuming that all chromium
present was comprised of hexavalent chromium (the most toxic form);
assuming 100% of a hazardous constituent present in the waste leached
into the hypothetical landfill; and including conservative quantitation
of tentatively identified compounds in analysis by mass spectoscopy.
EPA representatives also visited the facility to review the waste
generating process. Furthermore, OGAI remains obligated to periodically
sample the waste and report changes to the process (see below).
IV. Final Rule
A. What are the terms of this exclusion?
OGAI must dispose of this waste in a Subtitle D landfill permitted
or licensed by a state, and will remain obligated to verify that the
waste meets the allowable concentrations set forth here. OGAI must also
continue to determine whether the waste is identified in subpart C of
40 CFR pursuant to Sec. 261.11(c). This exclusion applies only to a
maximum annual volume of 244 cubic yards and is effective only if all
conditions contained in this rule are satisfied.
B. When is the delisting effective?
This rule is effective January 27, 2011. The Hazardous and Solid
Waste Amendments of 1984 amended section 3010 of RCRA to allow rules to
become effective in less than six months when the regulated community
does not need the six-month period to come into compliance. This rule
reduces rather than increases the existing requirements and, therefore,
is effective immediately upon publication under the Administrative
Procedure Act, pursuant to 5 U.S.C. 553(d).
C. How does this action affect the States?
Today's exclusion is being issued under the federal RCRA delisting
program. Therefore, only states subject to federal RCRA delisting
provisions would be affected. This exclusion is not effective in states
that have received authorization to make their own delisting decisions.
Also, the exclusion may not be effective in states having a dual system
that includes federal RCRA requirements and their own requirements. EPA
allows states to impose their own regulatory requirements that are more
stringent than EPA's, under section 3009 of RCRA. 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, we urge petitioners to contact the state regulatory
authority to establish the status of their wastes under the state law.
If a participating facility transports the petitioned waste to or
manages the waste in any state with delisting authorization, it must
obtain a delisting from that state before it can manage the waste as
nonhazardous in the state.
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 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 DRAS, which considers health and safety
risks to 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.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, and Reporting
and recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
[[Page 4826]]
Dated: January 19, 2011.
Bruce F. Sypniewski,
Acting Director, Land and Chemicals Division.
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 the following waste stream is
added in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Wastes Excluded Under Sec. Sec. 260.20 and
260.22
Table 1--Wastes Excluded From Non-Specific Sources
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Facility Address Waste description
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Owosso Graphic Arts Inc....... Owosso, Michigan. Wastewater treatment
sludges, F006,
generated at Owosso
Graphic Arts, Inc.
(OGAI) facility in
Owosso, Michigan, at
a maximum annual
rate of 244 cubic
yards per year. The
sludge must be
disposed of in a
Subtitle D landfill
licensed, permitted,
or otherwise
authorized by a
state to accept the
delisted wastewater
treatment sludge.
The exclusion
becomes effective as
of January 27, 2011.
1. Delisting Levels:
(A) The constituent
concentrations
measured in a
leachate extract may
not exceed the
following
concentrations (mg/
L): antimony--3.15;
arsenic--0.25;
cadmium--1;
chromium--5; lead--
5; and zinc--6,000.
(B) Maximum
allowable
groundwater
concentrations (mg/
L) are as follows:
antimony--0.006;
arsenic--0.0005;
cadmium--0.005;
chromium--0.1; lead--
0.015; and zinc--
11.3.
2. Annual
Verification
Testing: To verify
that the waste does
not exceed the
specified delisting
concentrations, OGAI
must collect and
analyze one waste
sample on an annual
basis using methods
with appropriate
detection
concentrations and
elements of quality
control. SW-846
Method 1311 must be
used for generation
of the leachate
extract used in the
testing of the
delisting levels if
oil and grease
comprise less than 1
percent of the
waste. SW-846 Method
1330A must be used
for generation of
the leaching extract
if oil and grease
comprise 1 percent
or more of the
waste. SW-846 Method
9071B must be used
for determination of
oil and grease. SW-
846 Methods 1311,
1330A, and 9071B are
incorporated by
reference in 40 CFR
260.11. A total
analysis of the
waste (accounting
for any filterable
liquids and the
dilution factor
inherent in the TCLP
method) may be used
to estimate the TCLP
concentration as
provided for in
section 1.2 of
Method 1311.
3. Changes in
Operating
Conditions: OGAI
must notify the EPA
in writing if the
manufacturing
process, the
chemicals used in
the manufacturing
process, the
treatment process,
or the chemicals
used in the
treatment process
significantly
change. OGAI must
handle wastes
generated after the
process change as
hazardous until it
has: demonstrated
that the wastes
continue to meet the
delisting
concentrations in
section 1;
demonstrated that no
new hazardous
constituents listed
in appendix VIII of
part 261 have been
introduced; and it
has received written
approval from EPA.
4. Data Submittals:
OGAI must submit the
data obtained
through verification
testing or as
required by other
conditions of this
rule to U.S. EPA
Region 5, RCRA
Delisting Program
(LR-8J), 77 West
Jackson Boulevard,
Chicago, IL 60604.
The annual
verification data
and certification of
proper disposal must
be submitted upon
the anniversary of
the effective date
of this exclusion.
OGAI must compile,
summarize, and
maintain on site for
a minimum of five
years records of
operating conditions
and analytical data.
OGAI must make these
records available
for inspection. All
data must be
accompanied by a
signed copy of the
certification
statement in 40 CFR
260.22(i)(12).
[[Page 4827]]
5. Reopener Language--
(A) If, anytime
after disposal of
the delisted waste,
OGAI possesses or is
otherwise made aware
of any data
(including but not
limited to leachate
data or groundwater
monitoring data)
relevant to the
delisted waste
indicating that any
constituent is at a
concentration in the
leachate higher than
the specified
delisting
concentration, or is
in the groundwater
at a concentration
higher than the
maximum allowable
groundwater
concentration in
paragraph (1), then
OGAI must report
such data, in
writing, to the
Regional
Administrator within
10 days of first
possessing or being
made aware of that
data. (B) Based on
the information
described in
paragraph (A) and
any other
information received
from any source, the
Regional
Administrator will
make a preliminary
determination as to
whether the reported
information requires
Agency action to
protect human health
or the environment.
Further action may
include suspending,
or revoking the
exclusion, or other
appropriate response
necessary to protect
human health and the
environment. (C) If
the Regional
Administrator
determines that the
reported information
does require Agency
action, the Regional
Administrator will
notify OGAI in
writing of the
actions the Regional
Administrator
believes are
necessary to protect
human health and the
environment. The
notice shall include
a statement of the
proposed action and
a statement
providing OGAI with
an opportunity to
present information
as to why the
proposed Agency
action is not
necessary or to
suggest an
alternative action.
OGAI shall have 30
days from the date
of the Regional
Administrator's
notice to present
the information. (D)
If after 30 days
OGAI presents no
further information
or after a review of
any submitted
information, the
Regional
Administrator will
issue a final
written
determination
describing the
Agency actions that
are necessary to
protect human health
or the environment.
Any required action
described in the
Regional
Administrator's
determination shall
become effective
immediately, unless
the Regional
Administrator
provides otherwise.
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[FR Doc. 2011-1768 Filed 1-26-11; 8:45 am]
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