[Federal Register Volume 76, Number 57 (Thursday, March 24, 2011)]
[Rules and Regulations]
[Pages 16534-16538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6892]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R03-RCRA-2010-0132; FRL-9285-7]
Hazardous Waste Management System Identification and Listing of
Hazardous Waste; Final Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA, also the Agency or
we in this preamble) today is granting a petition submitted by Babcock
& Wilcox Nuclear Operations Group, Inc., the current owner, and to BWX
Technologies, Inc., as predecessor in interest to the current owner,
identified collectively hereafter in this preamble as ``B&W NOG,'' to
exclude (or delist) on a one-time basis from the lists of hazardous
waste, a certain solid waste generated at its Mt. Athos facility near
Lynchburg, Virginia.
After careful analysis, we have concluded that the petitioned waste
is
[[Page 16535]]
not hazardous waste. This exclusion applies to 148 cubic yards of
sludge currently deposited in two on-site surface impoundments
designated as Final Effluent Ponds (FEPs) 1 and 2. Accordingly, this
final rule conditionally excludes this volume of the petitioned waste
from the requirements of the hazardous waste regulation under the
Resource Conservation and Recovery Act (RCRA).
DATES: Effective Date: March 24, 2011.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R03-RCRA-2010-0132. The public docket for this final rule is
located at the Environmental Protection Agency Region III, Land and
Chemicals Division, Office of Technical and Administrative Support,
Mail Code: 3LC10, 1650 Arch Street, Philadelphia, PA 19103-2029. The
docket is available for viewing from 8 a.m. to 3 p.m., Monday through
Friday, excluding Federal holidays. You may copy material from any
regulatory docket at a cost of $0.15 per page. EPA requests that you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. You should make an appointment
with the office at least 24 hours in advance. Docket materials are also
available electronically through http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For further technical information
concerning this document or for appointments to view the docket for the
B&W NOG facility petition, contact David M. Friedman, Environmental
Protection Agency Region III, Land and Chemicals Division, Office of
Technical and Administrative Support, Mail Code: 3LC10, 1650 Arch
Street, Philadelphia, PA 19103-2029, by calling 215-814-3395 or by e-
mail at [email protected].
SUPPLEMENTARY INFORMATION: The information in this preamble is
organized as follows:
I. Overview Information
II. Background
A. What is a delisting petition?
B. What regulations allow a hazardous waste generator to
petition for a delisting of its waste?
C. What information must the petitioner supply?
III. B&W NOG's Delisting Petition
A. What waste is the subject of B&W NOG's petition?
B. What information was submitted in support of this petition?
IV. EPA's Evaluation and Final Decision
A. Why is EPA approving this petition?
B. What limitations are associated with this exclusion?
C. When is the final rule effective?
D. How does this action affect States?
V. Public Comment Received on the Proposed Exclusion
A. Who submitted comments on the proposed rule?
B. Comment and Response From EPA
VI. Statutory and Executive Order Reviews
I. Overview Information
On October 7, 2010, we proposed to grant a petition submitted by
B&W NOG to exclude (or delist) from the definition of hazardous waste
on a one-time basis, wastewater treatment sludge generated at its Mt.
Athos facility near Lynchburg, VA, and currently deposited in two on-
site surface impoundments designated as FEPs 1 and 2. Today we are
finalizing the decision to grant a conditional exclusion as described
in the October 7, 2010 proposed rule (75 FR 62040).
II. Background
A. What is a delisting petition?
A delisting petition is a request from a facility to EPA or an
authorized State to exclude waste from the list of hazardous wastes on
a site-specific basis. A facility petitions EPA because it believes the
waste should not be considered hazardous under RCRA.
In a delisting petition, the petitioner must show that waste
generated at a particular facility does not meet any of the criteria
for which the waste was listed. The criteria which EPA uses to evaluate
a waste for listing are found in 40 CFR 261.11. An explanation of how
these criteria apply to a waste is contained in the background document
for that particular listed waste.
In addition to the criteria that we used when we originally listed
the waste, a petitioner must demonstrate that the waste does not
exhibit any of the hazardous waste characteristics found in 40 CFR 261,
Subpart C, and must 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 as required by Section 3001(f) of
RCRA (42 U.S.C. 6921(f)) and 40 CFR 260.22(a).
A petitioner who is granted a delisting by EPA or an authorized
State remains obligated under RCRA to confirm that the delisted waste
remains nonhazardous based on the hazardous waste characteristics and
must ensure that the waste meets the conditions set forth.
B. What regulations allow a hazardous waste generator to petition for a
delisting of its waste?
Under 40 CFR 260.20 and 262.22, a generator may petition EPA to
remove its waste from hazardous waste regulation by excluding it from
the lists of hazardous wastes contained in 40 CFR 261, Subpart D.
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. 40 CFR 260.22 provides generators the opportunity to
petition the Administrator to exclude a waste on a ``generator-
specific'' basis from the hazardous waste lists.
C. What information must the petitioner supply?
A petitioner must provide sufficient information 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. In
addition, EPA must determine that the waste is not hazardous for any
other reason.
III. B&W NOG's Delisting Petition
A. What waste is the subject of B&W NOG's petition?
On February 21, 2003, B&W NOG (then known as BWX Technologies,
Inc.) petitioned EPA to exclude from the lists of hazardous waste
contained in 40 CFR 261.31 on a one-time basis, the sludge which was
deposited in FEPs 1 and 2 because it believed that the petitioned waste
did not meet any of the criteria for which the waste was listed and
because there were no additional constituents or factors that would
cause the waste to be hazardous. This sludge was derived in part from
the treatment of wastewater in the pickle acid treatment system and,
therefore, was designated as EPA Hazardous Waste No. F006 (wastewater
treatment sludge from electroplating operations). The volume of sludge
contained in each FEP at that time was determined to be 6,600 cubic
yards, for a combined sludge volume of 13,200 cubic yards.
In addition, although the routing of treated wastewaters into the
FEPs has changed during the operating history of these units, at some
point they have both received treated wastewater from the low level
radioactive treatment system. Because of this, the sludge in these
units is classified as a ``mixed waste'' under RCRA. A mixed waste is
defined as a waste that contains both a radioactive component subject
to the Atomic Energy Act (AEA), as amended, and a hazardous component
subject to RCRA.
On September 3, 2008, B&W NOG notified EPA that it had successfully
completed a sludge removal project at FEPs 1 and 2. Sludge was removed
from these units and disposed of at a mixed
[[Page 16536]]
waste disposal facility permitted under the authority of both RCRA and
the Atomic Energy Act. B&W NOG conservatively estimated that of the
13,200 cubic yards of sludge in both units, only 148 cubic yards (less
than 2 percent of the original volume) remained. In this notification,
B&W NOG requested that its petition be amended to reflect the reduced
volume, and that the Agency proceed with the delisting request based on
the new volume.
For a detailed description of how the waste was generated, please
refer to the October 7, 2010 proposed rule.
B. What information was submitted in support of this petition?
B&W NOG submitted detailed descriptions of the processes generating
the waste. B&W NOG also asserted that the waste does not meet the
criteria for which the F006 waste was listed and that there are no
other factors that might cause the waste to be hazardous.
To support its assertion that the waste is not hazardous, B&W NOG
implemented a comprehensive strategy for evaluating the sludge in the
FEPs consisting of a two-phase sampling and analysis plan. Details of
this plan and the analytical results from representative samples of the
sludge are contained in the October 7, 2010 proposed rule.
IV. EPA's Evaluation and Final Decision
A. Why is EPA approving this petition?
Today EPA is finalizing a one-time exclusion for the 148 cubic
yards of wastewater treatment sludge generated at the B&W NOG's Mt.
Athos facility and currently deposited in two on-site surface
impoundments designated as FEPs 1 and 2. B&W NOG petitioned EPA to
exclude, or delist, the wastewater treatment sludge because B&W NOG
believed that the petitioned waste did not meet the criteria for which
it was listed and that the waste was not hazardous for any other
reason. Review of this petition included consideration of the original
listing criteria, as well as factors (including additional
constituents) other than those for which the waste was listed as
required by the Hazardous and Solid Waste Amendments (HSWA) of 1984 to
RCRA. See, Section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR
260.22(a)(1) and (2).
On October 7, 2010, we proposed to conditionally exclude the
remaining 148 cubic yards of wastewater treatment sludge currently
deposited in FEPs 1 and 2 at the B&W NOG's Mt. Athos facility from the
list of hazardous waste in 40 CFR 261.31, and requested public comment
on the proposed rule. For reasons stated in both the proposed rule and
in today's preamble, we determined that B&W NOG's wastewater treatment
sludge should be excluded from regulation as a hazardous waste.
B. What limitations are associated with this exclusion?
This exclusion applies only to the estimated 148 cubic yards of
sludge currently deposited in FEPs 1 and 2 at the B&W NOG's Mt. Athos
facility.
B&W NOG states in its petition that this sludge contains low levels
of radioactivity, and that it is, and if delisted by EPA will remain
subject to, Nuclear Regulatory Commission (NRC) regulations. Although
the sludge currently resides in the FEPs and will continue to do so for
many years, the FEPs will be subject to NRC decommissioning rules when
they are taken out of service. At that time, any sludge remaining in
the units will have to be removed and disposed of in a facility
licensed to accept low-level radioactive waste.
In order to adequately track wastes that have been delisted, when a
decision is made to dispose of all or of part of the sludge off-site,
we are requiring that B&W NOG provide a one-time notification to any
State regulatory agency to which or through which the delisted waste
will be transported for disposal. B&W NOG will be required to provide
this notification at least 60 calendar days prior to commencing these
activities.
C. When is the final rule effective?
This rule is effective March 24, 2011. HSWA 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. That is the case here because this rule reduces, rather
than increases, the existing requirements for persons generating
hazardous wastes. For these same reasons, this rule can and will become
effective immediately upon publication pursuant to the Administrative
Procedure Act, 5 U.S.C. 553(d).
D. How does this action affect 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 EPA authorization to make their own delisting
decisions. Also, this exclusion may not be effective in States having a
dual system that includes Federal RCRA requirements and their own
requirements.
We allow 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 until the
State approves the exclusion through a separate State administrative
action. Because a dual system (that is, both Federal and State
programs) may regulate a petitioner's waste, we urge petitioners to
contact the applicable State regulatory authorities or agencies to
establish the status of their waste under that State's hazardous waste
program.
We have also authorized some States to administer a delisting
program in place of the Federal program; that is, to make delisting
decisions pursuant to EPA authorized State regulations. Therefore, the
petition for an exclusion that EPA is granting today does not
necessarily apply within those authorized States. If B&W NOG transports
the petitioned waste to, or manages the waste in, any State which has
received delisting authorization from EPA, B&W NOG must obtain
delisting approval from that State before it can manage the waste as
nonhazardous in that State.
V. Public Comment Received on the Proposed Exclusion
A. Who submitted comments on the proposed rule?
We received public comments on the October 7, 2010 proposed
exclusion from counsel for B&W NOG, on behalf of the petitioner.
B. Comment and Response From EPA
Comment: The commenter requested a clarification of the regulatory
status of the minimal amounts of newly generated suspended solids that
are not captured by the dewatering process for the currently generated
wastewater treatment sludge, which is generated for the purpose of
disposal as filter cake solids. As explained in the October 7, 2010
proposed exclusion, on January 14, 2000 (65 FR 2337), EPA granted an
exclusion to B&W NOG (known then as BWX Technologies, Inc.), for its
currently generated F006 wastewater treatment sludge (i.e., the filter
cake solids). However, suspended solids carry over in the effluent from
the sludge dewatering process and settle out in the FEPs as a portion
of the sludge accumulation in these units (currently only in FEP 2).
[[Page 16537]]
The commenter stated that it was not clear whether the ``currently
deposited'' wording in the proposal refers to the sludge now residing
in the FEPs, or the current sludge plus the minimal future
accumulations contributed by the suspended solids carryover. The
commenter stated that there is no practical difference between the
filter cake solids, the FEP sludge that is the subject of today's
exclusion, and the suspended solids carryover. The commenter further
stated that the filter cake solids and the suspended solids carryover
are physically (except for water content) and chemically identical,
since they are both the precipitated electroplating sludge either (1)
captured on the filter media and subject to the January 14, 2000
exclusion or (2) escaping that process, carried over in the effluent
from the filtering process, subsequently settling out in FEP 2 and
similarly subject to the earlier delisting.
Response: As noted in the October 7, 2010, proposed exclusion, on
January 14, 2000, EPA finalized a delisting for the current production
of filter cake solids from the pickle acid wastewater system. The
suspended solids carryover that is the subject of this commenter's
request for clarification are uncaptured portions of the newly
generated filter cake which escape the dewatering process. EPA agrees
with the commenter that these suspended solids are identical in all
respects to the filter cake except for water content.
Recognizing that no filtration process is 100 percent efficient, it
was EPA's intention that this minimal amount of newly generated
suspended solids carryover described above be included as part of the
January 14, 2000 exclusion for the currently generated sludge.
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 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 Delisting Risk Assessment Software
(DRAS) program, which considers health and safety risks to infants and
children, to calculate the cumulative carcinogenic and noncarcinogenic
risk. 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.
List 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 17, 2011.
W.C. Early,
Acting Regional Administrator, Region III.
For the reasons set forth 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, 6924(y) and
6938.
Appendix IX of Part 261--[Amended]
0
2. Table 1 of Appendix IX of Part 261 is amended to add the following
waste stream in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Wastes Excluded Under Sec. Sec. 260.20 and
260.22
[[Page 16538]]
Table 1--Wastes Excluded From Non-Specific Sources
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Facility Address Waste description
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* * * * * * *
Babcock & Wilcox Nuclear Lynchburg, Wastewater treatment
Operations Group, Inc., Virginia. sludge from
current owner, and BWX electroplating
Technologies, Inc., operations
predecessor in interest to (Hazardous Waste
the current owner, identified Number F006)
collectively hereafter as generated at the Mt.
``B&W NOG''. Athos facility near
Lynchburg, VA and
currently deposited
in two on-site
surface impoundments
designated as Final
Effluent Ponds
(FEPs) 1 and 2. This
is a one-time
exclusion for 148
cubic yards of
sludge and is
effective after
March 24, 2011.
(1) Reopener
language.
(A) If B&W NOG
discovers that any
condition or
assumption related
to the
characterization of
the excluded waste
which was used in
the evaluation of
the petition or that
was predicted
through modeling is
not as reported in
the petition, then
B&W NOG must report
any information
relevant to that
condition or
assumption, in
writing, to the
Regional
Administrator and
the Virginia
Department of
Environmental
Quality within 10
calendar days of
discovering that
information
(B) Upon receiving
information
described in
paragraph (a) of
this section,
regardless of its
source, the Regional
Administrator will
determine whether
the reported
condition requires
further action.
Further action may
include repealing
the exclusion,
modifying the
exclusion, or other
appropriate action
deemed necessary to
protect human health
or the environment
(2) Notification
Requirements
In the event that the
delisted waste is
transported off-site
for disposal, B&W
NOG must provide a
one[dash]time
written notification
to any State
Regulatory Agency to
which or through
which the delisted
waste described
above will be
transported at least
60 calendar days
prior to the
commencement of such
activities. Failure
to provide such
notification will be
deemed to be a
violation of this
exclusion and may
result in revocation
of the decision and
other enforcement
action
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[FR Doc. 2011-6892 Filed 3-23-11; 8:45 am]
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