[Federal Register Volume 76, Number 19 (Friday, January 28, 2011)]
[Proposed Rules]
[Pages 5110-5119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1794]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R06-RCRA-2010-1052; SW-FRL-9259-3]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Proposed Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to grant a petition submitted by Gulf West
Landfill, TX, LP. (Gulf West) to exclude (or delist) the landfill
leachate generated by Gulf West in Anahuac, Texas from the lists of
hazardous wastes. EPA used the Delisting Risk Assessment Software
(DRAS) Version 3.0 in the evaluation of the impact of the petitioned
waste on human health and the environment.
DATES: We will accept comments until February 28, 2011. We will stamp
comments received after the close of the comment period as late. These
late comments may or may not be considered in formulating a final
decision. Your requests for a hearing must reach EPA by February 14,
2011. The request must contain the information prescribed in 40 CFR
260.20(d) (hereinafter all CFR cites refer to 40 CFR unless otherwise
stated).
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
RCRA- 2010-1052 by one of the following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov: Follow
the on-line instructions for submitting comments.
2. E-mail: [email protected].
3. Mail: Michelle Peace, Environmental Protection Agency,
Multimedia Planning and Permitting Division, RCRA Branch, Mail Code:
6PD-C, 1445 Ross Avenue, Dallas, TX 75202.
4. Hand Delivery or Courier: Deliver your comments to: Michelle
Peace, Environmental Protection Agency, Multimedia Planning and
Permitting Division, RCRA Branch, Mail Code: 6PD-C, 1445 Ross Avenue,
Dallas, TX 75202.
Instructions: Direct your comments to Docket ID No. EPA-R06-RCRA-
2010-1052. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket. 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 may be available either
electronically in http://www.regulations.gov or in electronic or hard
copy at the Environmental Protection Agency, RCRA Branch, 1445 Ross
Avenue, Dallas, TX 75202. The hard copy RCRA regulatory docket for this
proposed rule, EPA-R06-RCRA-2010-1052, is available for viewing from 8
a.m. to 5 p.m., Monday through Friday, excluding Federal holidays. 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.
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.
FOR FURTHER INFORMATION CONTACT: For technical information regarding
the Republic Services, Inc./BFI Gulf West Landfill petition, contact
Michelle Peace at 214-665-7430 or by e-mail at [email protected].
Your requests for a hearing must reach EPA by February 14, 2011.
The request must contain the information described in Sec. 260.20(d).
SUPPLEMENTARY INFORMATION: Gulf West submitted a petition under 40 CFR
260.20 and 260.22(a). Section 260.20 allows any person to petition the
Administrator to modify or revoke any provision of parts 260 through
266, 268 and 273. Section 260.22(a) specifically provides generators
the opportunity to petition the Administrator to exclude a waste on a
``generator specific'' basis from the hazardous waste lists.
EPA bases its proposed decision to grant the petition on an
evaluation of waste-specific information provided by the petitioner.
This decision, if finalized, would conditionally exclude
[[Page 5111]]
the petitioned waste from the requirements of hazardous waste
regulations under the Resource Conservation and Recovery Act (RCRA).
If finalized, EPA would conclude that Gulf West's petitioned waste
is non-hazardous with respect to the original listing criteria. EPA
would also conclude that Gulf West's process minimizes short-term and
long-term threats from the petitioned waste to human health and the
environment.
Table of Contents
The information in this section is organized as follows:
I. Overview Information
A. What action is EPA proposing?
B. Why is EPA proposing to approve this delisting?
C. How will Gulf West manage the waste, if it is delisted?
D. When would the proposed delisting exclusion be finalized?
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 EPA consider in deciding whether to grant a
delisting petition?
III. EPA's Evaluation of the Waste Information and Data
A. What wastes did Gulf West petition EPA to delist?
B. Who is Gulf West and what process does it use to generate the
petitioned waste?
C. How did Gulf West sample and analyze the data in this
petition?
D. What were the results of Gulf West's sample analysis?
E. How did EPA evaluate the risk of delisting this waste?
F. What did EPA conclude about Gulf West's analysis?
G. What other factors did EPA consider in its evaluation?
H. What is EPA's evaluation of this delisting petition?
IV. Next Steps
A. With what conditions must the petitioner comply?
B. What happens if Gulf West 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. Statutory and Executive Order Reviews
I. Overview Information
A. What action is EPA proposing?
EPA is proposing to approve the delisting petition submitted by
Gulf West to have the leachate from its landfill excluded, or delisted
from the definition of a hazardous waste. The leachate derived from the
management of several F- and K- waste codes. These wastes codes are
F019, F039, K017, K019, and K020.
B. Why is EPA proposing to approve this delisting?
Gulf West's petition requests an exclusion from the F019, F039,
K017, K019, and K020 waste listings pursuant to 40 CFR 260.20 and
260.22. Gulf West does not believe that the petitioned waste meets the
criteria for which EPA listed it. Gulf West also believes no additional
constituents or factors could cause the waste to be hazardous. EPA's
review of this petition included consideration of the original listing
criteria and the additional factors required by the Hazardous and Solid
Waste Amendments of 1984 (HSWA). See section 3001(f) of RCRA, 42 U.S.C.
6921(f), and 40 CFR 260.22(d)(1)-(4) (hereinafter all sectional
references are to 40 CFR unless otherwise indicated). In making the
initial 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 was
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 proposed decision to delist waste from
Gulf West is based on the information submitted in support of this
rule, including descriptions of the wastes and analytical data from the
Anahuac, Texas facility.
C. How will Gulf West manage the waste if it is delisted?
If the leachate is delisted, Gulf West will dispose of the leachate
at a publicly owned treatment works or at an industrial waste disposal
facility.
D. When would the proposed delisting exclusion be finalized?
RCRA section 3001(f) specifically requires EPA to provide a notice
and an opportunity for comment before granting or denying a final
exclusion. Thus, 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 facility
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.
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 the states?
Because 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 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, 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 Gulf West transports the petitioned waste to or manages the waste in
any state with delisting authorization, Gulf West must
[[Page 5112]]
obtain delisting authorization from that state before it can manage the
waste as non-hazardous in the state.
II. Background
A. What is the history of the delisting program?
EPA published an amended list of hazardous wastes from non-specific
and specific sources on January 16, 1981, as part of its final and
interim final regulations implementing section 3001 of RCRA. EPA has
amended this list several times and published it in 40 CFR 261.31 and
261.32.
EPA lists these wastes as hazardous because: (1) The wastes
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), (2) the wastes
meet the criteria for listing contained in Sec. 261.11(a)(2) or
(a)(3), or (3) the wastes are mixed with or derived from the treatment,
storage or disposal of such characteristic and listed wastes and which
therefore become hazardous under Sec. 261.3(a)(2)(iv) or (c)(2)(i),
known as the ``mixture'' or ``derived-from'' rules, respectively.
Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
described in these regulations or resulting from the operation of the
mixture or derived-from rules generally is hazardous, a specific waste
from an individual facility may not be hazardous.
For this reason, 40 CFR 260.20 and 260.22 provide an exclusion
procedure, called delisting, which allows persons to prove that 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 EPA or an
authorized state to exclude wastes from the list of hazardous wastes.
The facility petitions EPA 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 EPA lists a waste
are in part 261 and further explained in the background documents for
the listed waste.
In addition, under 40 CFR 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 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 non-hazardous based on the hazardous waste
characteristics even if EPA has ``delisted'' the waste.
C. What factors must EPA consider in deciding whether to grant a
delisting petition?
Besides considering the criteria in 40 CFR 260.22(a) and Sec.
3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for
the listed wastes, EPA must consider any factors (including additional
constituents) other than those for which EPA listed the waste, if a
reasonable basis exists that these additional factors could cause the
waste to be hazardous.
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. EPA's Evaluation of the Waste Information and Data
A. What waste did Gulf West petition EPA to delist?
In December 2009, Gulf West petitioned EPA to exclude from the
lists of hazardous wastes contained in Sec. Sec. 261.31 and 261.32,
landfill leachate (F019, F039, K017, K019, and K020) generated from its
facility located in Anahuac, Texas. The waste falls under the
classification of listed waste pursuant to Sec. Sec. 261.31 and
261.32. Specifically, in its petition, Gulf West requested that EPA
grant a standard exclusion for 6,436 cubic yards (150,000 gallons) per
year of the landfill leachate.
B. Who is Gulf West and what process does it use to generate the
petitioned waste?
Gulf West Landfill is a disposal facility. There are no products
manufactured at the site. The Landfill was built to RCRA construction
standards for hazardous waste disposal. However, the site since 1993
has not accepted hazardous waste and only accepts nonhazardous waste
for disposal only. In separate instances Shell Oil and BAE Systems Inc.
sent waste materials to the facility which were subsequently delisted
but at the time of disposal at Gulf West Landfill were still considered
hazardous wastes. The leachate generated from the landfill where these
materials were disposed have been treated as F039 hazardous wastes
which carry F019 and K017, K019, K020 waste codes as a result of the
mixture and derived from rules. The petitioned waste is managed by
collecting the liquids which have percolated through the land disposed
wastes into the leachate collection system and conveying the leachate
to storage tanks that are emptied into trucks for off-site disposal.
C. How did Gulf West sample and analyze the data in this petition?
To support its petition, Gulf West submitted:
(1) Historical information on waste generation and management
practices; and
(2) Analytical results from five samples for total concentrations
of compounds of concern (COC)s.
D. What were the results of Gulf West's analyses?
EPA believes that the descriptions of the Gulf West analytical
characterization provide a reasonable basis to grant Gulf West's
petition for an exclusion of the landfill leachate. EPA believes the
data submitted in support of the petition show the landfill leachate is
non-hazardous. Analytical data for the landfill leachate samples were
used in the DRAS to develop delisting levels. The data summaries for
COCs are presented in Table I. EPA has reviewed the sampling procedures
used by Gulf West and has determined that it satisfies EPA criteria for
collecting representative samples of the variations in constituent
concentrations in the landfill leachate. In addition, the data
submitted in support of the petition show that constituents in Gulf
West's waste are presently below health-based levels used in the
delisting decision-making. EPA believes that Gulf West has successfully
demonstrated that the landfill leachate is non-hazardous.
[[Page 5113]]
Table 1--Analytical Results/Maximum Allowable Delisting Concentration
[Landfill Leachate Republic Services, Inc./BFI Gulf West Landfill,
Anahuac, Texas]
------------------------------------------------------------------------
Maximum allowable
Constituent Maximum TCLP (mg/l) TCLP delisting
level (mg/L)
------------------------------------------------------------------------
Acetone (2-propanone).......... 4.10E+00 1.27E+02
Antimony....................... 1.20E-02 5.68E-02
Arsenic........................ 2.70E-01 3.37E-01
Barium......................... 1.80E+00 1.16E+01
Benzene........................ 1.20E-02 1.88E-02
Beryllium...................... 1.70E-04 1.03E+00
Cadmium........................ 3.50E-04 5.10E-02
Carbon disulfide............... 5.20E-02 1.29E+01
Chromium....................... 2.40E-02 5.00E+00
Cobalt......................... 1.40E-02 3.18E-01
Copper......................... 1.10E-02 2.21E+01
Cresol m-...................... 1.80E-01 7.06E+00
Cresol o-...................... 5.30E+00 7.06E+00
Cresol p-...................... 1.40E-01 7.06E-01
DDT p,p'-...................... 2.30E-05 9.72E+25
Dioxane 1,4-................... 9.10E-01 2.39E+00
Endosulfan (Endosulfan I and 3.90E-04 1.55E+00
II, mixture).
Endrin......................... 6.80E-05 2.0E-02
Ethyl ether.................... 4.30E-03 2.25E+01
Ethylbenzene................... 1.10E-02 3.21E+00
HCH, (Hexachlorocyclohexane ) 1.50E-04 4.00E-01
(Lindane) gamma-.
HCH, beta- 3.00E-05 2.26E-03
(Hexachlorocyclohexane beta-
BHC).
Heptachlor..................... 3.40E-04 8.0 E-03
Heptachlor epoxide............. 8.90E-05 8.0 E-03
Lead........................... 6.30E-03 2.57E+00
Mercury (Total)................ 8.10E-05 1.25E-02
Methoxychlor................... 3.40E-04 1.0E+01
Methyl ethyl ketone............ 5.40E-01 8.47E+01
Methyl isobutyl ketone......... 6.00E-01 1.13E+01
Nickel......................... 2.70E-01 5.74E+00
Selenium....................... 1.70E-02 4.47E-01
Silver......................... 1.40E-04 1.71E+00
Thallium....................... 4.08E-02 4.49 E-02
Tin............................ 6.50E-03 5.43 E+04
Toluene........................ 3.70E-02 3.93E+00
Trichlorophenoxy)propionic acid 7.00E-03 1.88E-01
2-(2,4,5- (Silvex).
Trichlorophenoxyacetic acid 1.80E-02 1.41E+00
2,4,5-.
Vanadium....................... 1.20E-01 4.88E+00
Xylenes (total)................ 1.70E-02 2.90E+00
Zinc........................... 8.10E-02 7.77E+01
------------------------------------------------------------------------
Notes: These levels represent the highest constituent concentration
found in any one sample and do not necessarily represent the specific
level found in one sample.
E. How did EPA evaluate the risk of delisting the waste?
For this delisting determination, EPA used such information
gathered to identify plausible exposure routes (i.e., groundwater,
surface water, air) for hazardous constituents present in the
petitioned waste. EPA determined that disposal in a surface impoundment
is the most reasonable, worst-case disposal scenario for Gulf West's
petitioned waste. EPA applied the Delisting Risk Assessment Software
(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
Gulf West'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/reg5rcra/wptdiv/hazardous/delisting/dras-software.html. In
assessing potential risks to groundwater, EPA used the maximum waste
volumes and the maximum reported extract concentrations as inputs to
the DRAS program to estimate the constituent concentrations in the
groundwater 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 1.0), the DRAS program
can back-calculate the acceptable receptor well concentrations
(referred to as compliance-point concentrations) using standard risk
assessment algorithms and EPA health-based numbers. Using the maximum
compliance-point concentrations and EPA's 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 groundwater.
EPA believes that the EPACMTP fate and transport model represents a
reasonable worst-case scenario for possible groundwater contamination
resulting from disposal of the petitioned waste in a surface
impoundment, and that a reasonable worst-case scenario is appropriate
when evaluating whether a waste should be relieved of the
[[Page 5114]]
protective management constraints of RCRA Subtitle C. The use of some
reasonable worst-case scenarios resulted 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 from the impoundment). As in the above
groundwater analyses, 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, EPA is generally unable to predict, and does
not presently control, how a petitioner will manage a waste after
delisting. Therefore, EPA currently believes that it is inappropriate
to consider extensive site-specific factors when applying the fate and
transport model. 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 DRAS results which calculate the maximum allowable
concentration of chemical constituents in the waste are presented in
Table I. Based on the comparison of the DRAS and TCLP Analyses results
found in Table I, the petitioned waste should be delisted because no
constituents of concern tested are likely to be present or formed as
reaction products or by-products in Gulf West waste.
F. What did EPA conclude about Gulf West's waste analysis?
EPA concluded, after reviewing Gulf West's processes that no other
hazardous constituents of concern, other than those for which tested,
are likely to be present or formed as reaction products or by-products
in the waste. In addition, on the basis of explanations and analytical
data provided by Gulf West, pursuant to Sec. 260.22, EPA concludes
that the petitioned waste does not exhibit any of the characteristics
of ignitability, corrosivity, reactivity or toxicity. See Sec. Sec.
261.21, 261.22 and 261.23, respectively.
G. What other factors did EPA consider in its evaluation?
During the evaluation of Gulf West's petition, EPA also considered
the potential impact of the petitioned waste via non-groundwater routes
(i.e., air emission and surface runoff). With regard to airborne
dispersion in particular, EPA believes that exposure to airborne
contaminants from Gulf West's petitioned waste is unlikely. Therefore,
no appreciable air releases are likely from Gulf West's waste under any
likely disposal conditions. EPA evaluated the potential hazards
resulting from the unlikely scenario of airborne exposure to hazardous
constituents released from Gulf West's waste in an open impoundment.
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 Gulf West's
landfill leachate.
H. What is EPA's evaluation of this delisting petition?
The descriptions of Gulf West's hazardous waste process and
analytical characterization provide a reasonable basis for EPA to grant
the exclusion. The data submitted in support of the petition show that
constituents in the waste are below the leachable concentrations (see
Table I). EPA believes that Gulf West's landfill leachate will not
impose any threat to human health and the environment.
Thus, EPA believes Gulf West should be granted an exclusion for the
landfill leachate. EPA believes the data submitted in support of the
petition show Gulf West's landfill leachate is non-hazardous. The data
submitted in support of the petition show that constituents in Gulf
West's waste are presently below the compliance point concentrations
used in the delisting decision and would not pose a substantial hazard
to the environment. EPA believes that Gulf West has successfully
demonstrated that the landfill leachate is non-hazardous.
EPA therefore, proposes to grant an exclusion to Gulf West in
Anahuac, Texas, for the landfill leachate described in its petition.
EPA's decision to exclude this waste is based on descriptions of the
treatment activities associated with the petitioned waste and
characterization of the landfill leachate.
If EPA finalizes the proposed rule, EPA 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, Gulf West, must comply with the requirements in 40
CFR part 261, Appendix IX, Table 1. The text below gives the rationale
and details of those requirements.
(1) Delisting Levels:
This paragraph provides the levels of constituents for which Gulf
West must test the landfill leachate, below which these wastes would be
considered non-hazardous. EPA selected the set of inorganic and organic
constituents specified in paragraph (1) of 40 CFR part 261, Appendix
IX, Table 1, (the exclusion language) based on information in the
petition. EPA compiled the inorganic and organic constituents list from
the composition of the waste, descriptions of Gulf West'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
concentrations.
(2) Waste Holding and Handling:
The purpose of this paragraph is to ensure that Gulf West manages
and disposes of any landfill leachate that contains hazardous levels of
inorganic and organic constituents according to Subtitle C of RCRA.
Managing the landfill leachate as a hazardous waste until initial
verification testing is performed will protect against improper
handling of hazardous material. If EPA determines that the data
collected under this paragraph do not support the data provided for in
the petition, the exclusion will not cover the petitioned waste. The
exclusion is effective upon publication in the Federal Register but the
disposal as non-hazardous cannot begin until the verification sampling
is completed.
(3) Verification Testing Requirements:
Gulf West must complete a rigorous verification testing program on
the landfill leachate to assure that the sludge does not exceed the
maximum levels specified in paragraph (1) of the exclusion language.
This verification program operates on two levels. The first part of the
verification testing program consists of testing the landfill leachate
for specified indicator parameters as per paragraph (1) of the
exclusion language.
If EPA determines that the data collected under this paragraph do
not support the data provided for the
[[Page 5115]]
petition, the exclusion will not cover the generated wastes. If the
data from the initial verification testing program demonstrate that the
leachate meets the delisting levels, Gulf West may request quarterly
testing. EPA will notify Gulf West in writing, if and when it may
replace the testing conditions in paragraph (3)(A) with the testing
conditions in (3)(B) of the exclusion language.
The second part of the verification testing program is the
quarterly testing of representative samples of landfill leachate for
all constituents specified in paragraph (1) of the exclusion language.
EPA believes that the concentrations of the constituents of concern in
the landfill leachate may vary over time. Consequently, this program
will ensure that the leachate is evaluated in terms of variation in
constituent concentrations in the waste over time.
The proposed subsequent testing would verify that the constituent
concentrations of the landfill leachate do not exhibit unacceptable
temporal and spatial levels of toxic constituents. EPA is proposing to
require Gulf West to analyze representative samples of the landfill
leachate quarterly during the first year of waste generation. Gulf West
would begin quarterly sampling 60 days after the final exclusion as
described in paragraph (3)(B) of the exclusion language.
EPA, per paragraph 3(C) of the exclusion language, is proposing to
end the subsequent testing conditions after the first year, if Gulf
West has demonstrated that the waste consistently meets the delisting
levels. To confirm that the characteristics of the waste do not change
significantly over time, Gulf West must continue to analyze a
representative sample of the waste on an annual basis. Annual testing
requires analyzing the full list of components in paragraph (1) of the
exclusion language. If operating conditions change as described in
paragraph (4) of the exclusion language; Gulf West must reinstate all
testing in paragraph (1) of the exclusion language.
Gulf West must prove through a new demonstration that their waste
meets the conditions of the exclusion. If the annual testing of the
waste does not meet the delisting requirements in paragraph (1), Gulf
West must notify EPA according to the requirements in paragraph (6) of
the exclusion language. The facility must provide sampling results that
support the rationale that the delisting exclusion should not be
withdrawn.
(4) Changes in Operating Conditions:
Paragraph (4) of the exclusion language would allow Gulf West the
flexibility of modifying its processes (for example, changes in
equipment or change in operating conditions). However, Gulf West must
prove the effectiveness of the modified process and request approval
from EPA. Gulf West must manage wastes generated during the new process
demonstration as hazardous waste until it has obtained written approval
and paragraph (3) of the exclusion language is satisfied.
(5) Data Submittals:
To provide appropriate documentation that Gulf West's landfill
leachate is meeting the delisting levels, Gulf West must compile,
summarize, and keep delisting records on-site for a minimum of five
years. It should keep all analytical data obtained through paragraph
(3) of the exclusion language including quality control information for
five years. Paragraph (5) of the exclusion language requires that Gulf
West furnish these data upon request for inspection by any employee or
representative of EPA or the State of Texas.
If the proposed exclusion is made final, it will apply only to
6,436 cubic yards (per year of landfill leachate generated at the Gulf
West after successful verification testing. EPA would require Gulf West
to file a new delisting petition under any of the following
circumstances:
(a) If it significantly alters the process or treatment system
except as described in paragraph (4) of the exclusion language;
(b) If it significantly changes from the current process(es)
described in their petition; or
(c) If it makes any changes that could affect the composition or
type of waste generated.
Gulf West must manage waste volumes greater than 6,436 cubic yards
per year of landfill leachate as hazardous until EPA grants a new
exclusion.
When this exclusion becomes final, Gulf West's management of the
wastes covered by this petition would be relieved from Subtitle C
jurisdiction, the landfill leachate from Gulf West will be treated and
disposed at the Anahuac Wastewater Treatment Plant in Anahuac, TX or at
the Newpark Industrial Facility in Winnie, TX.
(6) Reopener:
The purpose of paragraph (6) of the exclusion language is to
require Gulf West 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. Gulf West must also use this procedure, if the waste
sample in the annual testing fails to meet the levels found in
paragraph (1). 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 EPA 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 Gulf West to
report differing site conditions or assumptions used in the petition in
addition to failure to meet the annual testing conditions within 10
days of discovery. 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.
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. 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 delistings is
merited in light of EPA's experience. See Reynolds Metals Company at 62
FR 37694 and 62 FR 63458 where the delisted waste leached at greater
concentrations in the environment than the concentrations predicted
when conducting the TCLP, thus 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).
(7) Notification Requirements:
In order to adequately track wastes that have been delisted, EPA is
requiring that Gulf West provide a one-time notification to any state
regulatory agency through which or to which the delisted waste is being
carried. Gulf West must provide this notification 60 days before
commencing this activity.
B. What happens if Gulf West violates the terms and conditions?
If Gulf West violates the terms and conditions established in the
exclusion, EPA will start procedures to withdraw the exclusion. Where
there is an immediate threat to human health and the environment, EPA
will evaluate the need for enforcement activities on a case-by-case
basis. EPA expects Gulf West to conduct the appropriate waste analysis
and comply with the criteria explained above in paragraph (1) of the
exclusion.
[[Page 5116]]
V. Public Comments
A. How can I as an interested party submit comments?
EPA is requesting public comments on this proposed decision. Please
send three copies of your comments. Send two copies to Ben Banipal,
Section Chief of the Corrective Action and Waste Minimization Section
(6PD-C), Multimedia Planning and Permitting Division, Environmental
Protection Agency (EPA), 1445 Ross Avenue, Dallas, Texas 75202.
Identify your comments at the top with this regulatory docket number:
``EPA-R6-RCRA-2010-1052 Republic Services, Inc./BFI Gulf West
Landfill.'' You may submit your comments electronically to Michelle
Peace at [email protected].
You should submit requests for a hearing to Ben Banipal, Section
Chief of the Corrective Action and Waste Minimization Section (6PD-C),
Multimedia Planning and Permitting Division, U. S. 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 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. You may
also request the electronic files of the docket which do not appear on
regulations.gov.
VI. 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 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
record-keeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: January 18, 2011.
Carl E. Edlund,
Director, Multimedia Planning and Permitting Division, Region 6.
For the reasons set out in the preamble, 40 CFR part 261 is
proposed 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 Tables 1 and 2 of Appendix IX to Part 261 add the waste
stream ``Gulf West Landfill'' in alphabetical order by facility to read
as follows:
Appendix IX to Part 261--Waste Excluded Under Sec. Sec. 260.20 and
260.22
[[Page 5117]]
Table 1--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Gulf West Landfill............. Anahuac, TX.................... Landfill Leachate (EPA Hazardous Waste Numbers
F019, F039, K017, K019, K020.) generated at a
maximum rate of 1,300,000 gallons (6,436
cubic yards) per calendar year after [insert
publication date of the final rule].
For the exclusion to be valid, Gulf West must
implement a verification testing program for
each of the waste streams 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.
Landfill Leachate. Leachable Concentrations
(mg/l): Antimony--0.0568; Acetone--127;
Arsenic--0.337; Barium--11.6; Benzene--
0.0188; Beryllium--1.03; Cadmium--0.051;
Chromium--5.0; Cobalt--0.318; Copper--22.1; m-
Cresol--7.06; o-Cresol- 7.06; p-Cresol--
0.706; p,p- DDT -0.0103; 1,4- Dioxane--2.39;
Endosulfan- 1.55; Endrin--0.02; Ethyl ether-
22.5; Ethylbenzene--3.21; beta BHC- 0.0026;
Heptachlor--0.008; Heptachlor epoxide- 0.008;
Lead- 2.57; Lindane -0.4; Mercury- 0.0125;
methoxychlor- 10; methyl ethyl ketone- 84.7;
methyl isobutyl ketone- 11.3; nickel- 5.74;
selenium-0.447; silver-1.71; Thallium-
0.0449; tin-54,300; toluene-3.93; Silex-
0.188; 2,4,5- trichlorophenoxyacetic acid-
1.41; vanadium- 4.88; xylenes (total) -2.90;
zinc-77.7.
(2) Waste Holding and Handling:
(A) Waste classification as non-hazardous can
not begin until compliance with the limits
set in paragraph (1) for the Landfill
Leachate has occurred for four consecutive
quarterly sampling events.
(B) If constituent levels in any annual sample
and retest sample taken by Gulf West exceed
any of the delisting levels set in paragraph
(1) for the Landfill Leachate, Gulf West must
do the following:
(i) notify EPA in accordance with paragraph
(6) and
(ii) manage and dispose the Landfill Leachate
as hazardous waste generated under Subtitle C
of RCRA.
(3) Testing Requirements: Upon this exclusion
becoming final, Gulf West must perform
analytical testing by sampling and analyzing
the Landfill Leachate as follows:
(A) Initial Verification Testing:
(i) Collect four representative composite
samples of the Landfill Leachate at quarterly
intervals after EPA grants the final
exclusion. The first composite sample of each
waste stream 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) indicates that the
Landfill Leachate must continue to be
disposed as hazardous waste in accordance
with the applicable hazardous waste
requirements until such time that four
consecutive quarterly samples indicate
compliance with delisting levels listed in
paragraph (1).
(iii) Within sixty (60) days after taking its
last quarterly sample, Gulf West will report
its analytical test data to EPA. If levels of
constituents measured in the samples of the
Landfill Leachate do not exceed the levels
set forth in paragraph (1) of this exclusion
for four consecutive quarters, Gulf West can
manage and dispose the non-hazardous Landfill
Leachate according to all applicable solid
waste regulations.
(B) Annual Testing:
(i) If Gulf West 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), Gulf West must begin annual
testing as follows: Gulf West must test a
representative composite sample of the
Landfill Leachate for all constituents listed
in paragraph (1) at least once per calendar
year. If any measured constituent
concentration exceeds the delisting levels
set forth in paragraph (1), Gulf West must
collect an additional representative
composite sample within 10 days of being made
aware of the exceedence and test it
expeditiously for the constituent(s) which
exceeded delisting levels in the original
annual sample.
(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 Gulf West
Landfill Leachate are 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 during the calendar year.
[[Page 5118]]
(4) Changes in Operating Conditions: If Gulf
West 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 waste generated from the new
process as non-hazardous until the waste meet
the delisting levels set in paragraph (1) and
it has received written approval to do so
from EPA. Gulf West 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.
(5) Data Submittals: Gulf West must submit the
information described below. If Gulf West
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). Gulf West 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. 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 Gulf West 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 annual testing (and retest,
if applicable) of the waste does not meet the
delisting requirements in paragraph 1, Gulf
West 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 Gulf West 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 receipt 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: Gulf West 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) For onsite disposal a notice should be
submitted to the State to notify the State
that disposal of the delisted materials have
begun.
[[Page 5119]]
(C) Update one-time written notification, if
it ships the delisted waste into a different
disposal facility.
(D) Failure to provide this notification will
result in a violation of the delisting
variance and a possible revocation of the
decision.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
Table 2--Waste Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Gulf West Landfill............. Anahuac, TX.................... Landfill Leachate (EPA Hazardous Waste Numbers
F019, F039, K017, K019, K020.) generated at a
maximum rate of 1,300,000 gallons (6,436
cubic yards) per calendar year after [insert
publication date of the final rule].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2011-1794 Filed 1-27-11; 8:45 am]
BILLING CODE 6560-50-P