[Federal Register: June 2, 2003 (Volume 68, Number 105)]
[Rules and Regulations]
[Page 32645-32656]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02jn03-14]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FRL-7505-6]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Final Exclusion
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action on a petition submitted by
Bekaert Steel, Dyersburg, Tennessee (``Bekaert''), to exclude (or
``delist'' a certain hazardous waste from the lists of hazardous
wastes. Bekaert will generate the petitioned waste by treating
wastewater from Bekaert's steel plant, copper electroplating area where
steel wire is used to manufacture copper and zinc coated steel wire for
the tire industry. The waste so generated is a wastewater treatment
sludge that meets the definition of F006. Bekaert petitioned EPA to
grant a generator-specific delisting, because Bekaert believes that its
F006 waste does not meet the criteria for which this type of waste was
listed. EPA reviewed all of the waste-specific information provided by
Bekaert, performed calculations, and determined that the waste could be
disposed in a landfill without harming human health and the
environment. This action responds to Bekaert's petition to delist this
waste on a ``generator-specific'' basis from the hazardous waste lists,
and the approved delisting petition for the Bekaert, Rogers, Arkansas
facility which utilizes an identical process. EPA took into account the
final delisting levels which are based on the EPACML model as performed
by Region 6. Unless adverse comments are received with sixty days of
this Direct Final Rule and in accordance with the conditions specified
in this final rule, Bekaert's petitioned waste is excluded from the
requirements of hazardous waste regulations under Subtitle C of the
Resource Conservation and Recovery Act (RCRA).
DATES: This rule is effective on August 1, 2003 without further notice,
unless EPA receives adverse comment by July 17, 2003. If we receive
adverse comment, we will publish a timely withdrawal in the Federal
Register informing the public that this rule will not take effect.
ADDRESSES: The RCRA regulatory docket for this final rule is located at
the EPA Library, U.S. Environmental
[[Page 32646]]
Protection Agency, Region 4, Sam Nunn Atlanta Federal Center, 61
Forsyth Street, SW., Atlanta, Georgia 30303, and is available for
viewing from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal
holidays.
The reference number for this docket is R4-03-01-BekaertF. The
public may copy material from any regulatory docket at no cost for the
first 100 pages, and at a cost of $0.15 per page for additional copies.
For copying at the Tennessee Department of Environment and Conservation
, please see below.
FOR FURTHER INFORMATION CONTACT: For general and technical information
concerning this final rule, please contact David Langston, RCRA
Enforcement and Compliance Branch, (Mail Code 4WD-RCRA), U.S.
Environmental Protection Agency, Region 4, Sam Nunn Atlanta Federal
Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303, (404) 562-8588,
or call, toll free, (800) 241-1754, and leave a message, with your name
and phone number, for David Langston to return your call. Questions may
also be e-mailed to David Langston at langston.david@epa.gov. You may
also contact Nina Vo,Tennessee Department of Environment and
Conservation, Division of Solid Waste Management, 5th Floor L&C Tower
401 Church Street, Nashville, Tennessee 37243-1535. If you wish to copy
documents at TDEC, please contact Ms. Vo for copying procedures and
costs.
SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed
in the following outline:
I. Background
A. What Laws and Regulations Give EPA the Authority to Delist
Wastes?
B. How did EPA Evaluate this Petition?
1. What is the EPACML model that EPA used in the past for
determining delisting levels?
2. What is the DRAS that uses the new EPACMTP model to calculate
not only delisting levels, but also to evaluate the effects of the
waste on human health and the environment?
3. Why is the EPACMTP an improvement over the EPACML?
4. Where can technical details on the EPACMTP be found?
5. What method is EPA proposing to use to determine delisting
levels for this petitioned waste?
II. Disposition of Delisting Petition
A. Summary of Delisting Petition Submitted by Bekaert Steel
Corporation, Dyersburg, Tennessee (Bekaert)
B. What Delisting Levels Did EPA Obtain with DRAS and EPACMTP?
C. Conclusion
III. Limited Effect of Federal Exclusion
Will this Rule Apply in All States?
IV. Effective Date
V. Paperwork Reduction Act
VI. National Technology Transfer and Advancement Act
VII. Unfunded Mandates Reform Act
VIII. Regulatory Flexibility Act, as Amended by the Small Business
Regulatory Enforcement and Fairness Act
IX. Executive Order 12866
X. Executive Order 13045
XI. Executive Order 13084 Affecting Indian Tribal Governments
XII. Submission to Congress and General Accounting Office
XIII. Executive Order 13132
I. Background
A. What Laws and Regulations Give EPA the Authority to Delist Wastes?
On January 16, 1981, as part of its final and interim final
regulations implementing section 3001 of RCRA, EPA published an amended
list of hazardous wastes from non-specific and specific sources. This
list has been amended several times, and is published in 40 CFR 261.31
and 261.32. These wastes are listed as hazardous because they exhibit
one or more of the characteristics of hazardous wastes identified in
subpart C of part 261 (i.e., ignitability, corrosivity, reactivity, and
toxicity) or meet the criteria for listing contained in Sec. 261.11
(a)(2) or (a)(3).
Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
that is described in these regulations generally is hazardous, a
specific waste from an individual facility meeting the listing
description may not be. For this reason, Sec. Sec. 260.20 and 260.22
provide an exclusion procedure, allowing persons to demonstrate that a
specific waste from a particular generating facility \1\ should not be
regulated as a hazardous waste.
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\1\ Although no one produces hazardous waste intentionally, many
industrial processes result in the production of hazardous waste, as
well as useful products and services. A ``generating facility'' is a
facility in which hazardous waste is produced, and a ``generator''
is a person who produces hazardous waste or causes hazardous waste
to be produced at a particular place. Please see 40 CFR 260.10 for
regulatory definitions of ``generator,'' ``facility,'' ``person,''
and other terms related to hazardous waste, and 40 CFR part 262 for
regulatory requirements for generators.
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To have their wastes excluded, petitioners must show, first, that
wastes generated at their facilities do not meet any of the criteria
for which the wastes were listed. See Sec. 260.22(a) and the
background documents for the listed wastes. Second, the Administrator
must determine, where he/she has a reasonable basis to believe that
factors (including additional constituents) other than those for which
the waste was listed could cause the waste to be a hazardous waste,
that such factors do not warrant retaining the waste as a hazardous
waste. Accordingly, a petitioner also must demonstrate that the waste
does not exhibit any of the hazardous waste characteristics (i.e.,
ignitability, reactivity, corrosivity, and toxicity), and must present
sufficient information for the EPA to determine whether the waste
contains any other toxicants at hazardous levels. See Sec. 260.22(a),
42 U.S.C. 6921(f), and the background documents for the listed wastes.
Although wastes which are ``delisted'' (i.e., excluded) have been
evaluated to determine whether or not they exhibit any of the
characteristics of hazardous waste, generators remain obligated under
RCRA to determine whether or not their wastes continue to be
nonhazardous based on the hazardous waste characteristics (i.e.,
characteristics which may be promulgated subsequent to a delisting
decision.)
In addition, residues from the treatment, storage, or disposal of
listed hazardous wastes and mixtures containing listed hazardous wastes
are also considered hazardous wastes. See Sec. 261.3(a)(2)(iv) and
(c)(2)(i), referred to as the ``mixture'' and ``derived-from'' rules,
respectively. Such wastes are also eligible for exclusion and remain
hazardous wastes until excluded. On December 6, 1991, the U.S. Court of
Appeals for the District of Columbia vacated the ``mixture/derived-
from'' rules and remanded them to the EPA on procedural grounds. Shell
Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). On March 3, 1992, EPA
reinstated the mixture and derived-from rules, and solicited comments
on other ways to regulate waste mixtures and residues (57 FR 7628).
These rules became final on October 30, 1992 (57 FR 49278), and should
be consulted for more information regarding waste mixtures and solid
wastes derived from treatment, storage, or disposal of a hazardous
waste. On May 16, 2001, EPA amended the mixture and derived-from rules
for certain types of wastes (66 FR 27218 and 66 FR 27266). The mixture
and derived-from rules are codified in 40 CFR 261.3, paragraphs
(a)(2)(iv) and (c)(2)(i). EPA plans to address all waste mixtures and
residues when the final portion of the Hazardous Waste Identification
Rule (HWIR) is promulgated.
On October 10, 1995, the Administrator delegated to the Regional
Administrators the authority to evaluate and approve or deny petitions
submitted in accordance with Sec. Sec. 260.20 and 260.22, by
generators within their Regions (National Delegation of Authority 8-
19), in States not yet authorized to administer a delisting
[[Page 32647]]
program in lieu of the Federal program. On March 11, 1996, the Regional
Administrator of EPA, Region 4, redelegated delisting authority to the
Director of the Waste Management Division (Regional Delegation of
Authority 8-19).
B. How Did EPA Evaluate This Petition?
This petition requests a delisting for a hazardous waste listed as
F006. 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, the EPA agrees
with the petitioner that the waste is nonhazardous 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 then 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. See
Sec. 260.22 (a) and (d). The EPA considered whether the waste is
acutely toxic, and considered the toxicity of the constituents, 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.
1. What Is the EPACML Model That EPA Used in the Past for Determining
Delisting Levels?
In the past, EPA used the EPA Composite Model for Landfills
(EPACML) fate and transport model, modified for delisting, as one
approach for determining the delisting levels for petitioned waste. See
56 FR 32993-33012, July 18, 1991, for details on the use of the EPACML
model to determine the concentrations of constituents in a waste that
will not result in groundwater contamination. With the EPACML approach,
as used in the past, EPA calculated a delisting level for each
hazardous constituent by using the maximum estimated waste volume to
determine a Dilution Attenuation Factor (DAF) from a table of waste
volumes and DAFs previously calculated by the EPACML model, as modified
for delisting. See 56 FR 32993-33012, July 18, 1991. The maximum
estimated waste volume is the maximum number of cubic yards of
petitioned waste to be disposed of each year. The delisting level for
each constituent was equal to the DAF multiplied by the maximum
contaminant level (MCL) which the Safe Drinking Water Act allows for
that constituent in drinking water. The delisting level is a
concentration in the waste leachate that will not cause the MCL to be
exceeded in groundwater underneath a landfill where the waste is
disposed. This method of calculating delisting levels resulted in
conservative levels that were protective of groundwater, because the
model did not assume that the landfill had the controls required of
Subtitle D landfills. A Subtitle D landfill is a landfill subject to
RCRA Subtitle D nonhazardous waste regulations, and to State and local
nonhazardous waste regulations.
2. What Is the DRAS That Uses the New EPACMTP Model To Calculate Not
Only Delisting Levels, But Also To Evaluate the Effects of the Waste on
Human Health and the Environment?
The EPA is proposing to use the Delisting Risk Assessment Software
(DRAS),\2\ developed by EPA, Region 6, to evaluate this delisting
petition. The DRAS uses a new model, called the EPA Composite Model for
Leachate Migration with Transformation Products (EPACMTP). The EPACMTP
improves on the EPACML model in several ways. EPA is proposing to use
the DRAS to calculate delisting levels and to evaluate the impact of
Bekaert's petitioned waste on human health and the environment.
Delisting levels are the maximum allowable concentrations for hazardous
constituents in the waste, so that disposal in a landfill will not harm
human health and the environment by contaminating groundwater, surface
water, or air.
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\2\ For more information on DRAS and EPACMTP, please see 65 FR
75637-75651, December 4, 2000 and 65 FR 58015-58031, September 27,
2000. The December 4, 2000 Federal Register discusses the key
enhancements of the EPACMTP and the details are provided in the
background documents to the proposed 1995 Hazardous Waste
Identification Rule (HWIR) (60 FR 66344, December 21, 1995). The
background documents are available through the RCRA HWIR FR proposal
docket (60 FR 66344, December 21, 1995). URL addresses for Region 6
delisting guidance and software are the following:
1. Delisting Guidance Manual http://www.epa.gov/earthlr6/6pd/rcra_c/pd-o/dlistpdf.htm
2. Delisting Risk Assessment Software (DRAS) http://www.epa.gov/Arkansas/6pd/rcra--c/pd-o/dras/dras.htm
3. DRAS Technical Support Document (DTSD) http://www.epa.gov/earthlr6/6pd/rcra_c/pd-o/dtsd.htm
4. DRAS Users Guide http://www.epa.gov/earthlr6/6pd/rcra--c/pd-o/uguide.pdf Region 6 has made them available to the public, free of
charge.
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Today's proposal provides background information on the mechanics
of the DRAS, and the use of the DRAS in delisting decision-making.
Please see the EPA, Region 6, RCRA Delisting Technical Support Document
(RDTSD) for a complete discussion of the DRAS calculation methods. The
RDTSD, and Federal Registers, 65 FR 75637-75651, December 4, 2000, and
65 FR 58015-58031, September 27, 2000, are the sources of the DRAS
information presented in today's preamble, and are included in the RCRA
regulatory docket for this proposed rule.
The DRAS performs a risk assessment for petitioned wastes that are
disposed of in the two waste management units of concern: surface
impoundments for liquid wastes and landfills for non-liquid wastes.
Bekaert's petitioned waste is solid, not liquid, and will be disposed
in a landfill; therefore, only the application of DRAS to landfills
will be discussed in this preamble.
DRAS calculates releases from solid-phase wastes in a landfill,
with the following assumptions: (1) The wastes are disposed in a
Subtitle D landfill and covered with a 2-foot-thick native soil layer;
(2) the landfill is unlined or effectively unlined due to a liner that
will eventually completely fail. The two parameters used to
characterize landfills are (1) area and (2) depth (the thickness of the
waste layer). Data to characterize landfills were obtained from a
nationwide survey of industrial Subtitle D landfills.\3\ Parameters and
assumptions used to estimate infiltration of leachate from a landfill
are provided in the EPACMTP Background Document and User's Guide,
Office of Solid Waste, U.S. EPA, Washington, DC, September 1996.
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\3\ Nationwide Survey of Industrial Subtitle D Landfills,
Westat, 1987
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DRAS uses the EPACMTP model to simulate the fate and transport of
dissolved contaminants from a point of release at the base of a
landfill, through the unsaturated zone and underlying groundwater, to a
receptor well at an arbitrary downstream location in the aquifer (the
rock formation in which the groundwater is located). DRAS evaluates,
with the EPACMTP model, the groundwater exposure concentrations at the
receptor well that result from the chemical release and transport from
the landfill (Application of EPACMTP to Region 6 Delisting Program:
Development of Waste Volume-Specific Dilution Attenuation Factors, U.S.
EPA, August 1996). For the purpose of delisting determinations,
receptor well concentrations for both carcinogens and non-carcinogens
from finite-source degraders and non-degraders are determined with this
model. Delisted waste is a finite source, because in a finite period of
time, the
[[Page 32648]]
waste's constituents will leach and move out of the landfill. Since EPA
has made a final decision to delist Bekaert's F006 waste, Bekaert must
meet the delisting levels and dispose of the waste in a Subtitle D
landfill, because EPA determined the delisting levels based on a
landfill model.
3. Why Is the EPACMTP an Improvement Over the EPACML?
The EPACMTP includes three major categories of improvements over
the EPACML. The improvements include:
1--Incorporation of additional fate and transport processes (e.g.,
degradation of chemical constituents; fate and transport of metals);
2--Use of enhanced flow and transport equations (e.g., for calculating
transport in three dimensions); and
3--Revision of the Monte Carlo methodology (e.g., to allow use of site-
specific, waste-specific data) (EPACMTP Background Document and User's
Guide, Office of Solid Waste, U.S. EPA, Washington, DC, September
1996).
A summary of the key enhancements which have been implemented in
the EPACMTP is presented here and the details are provided in the
background documents to the proposed 1995 Hazardous Waste
Identification Rule (HWIR) (60 FR 66344, December 21, 1995). The
background documents are available through the RCRA HWIR Federal
Register proposal docket (60 FR 66344, December 21, 1995). For more
information, please contact David Langston, North Enforcement and
Compliance Section, (Mail Code 4WD-RCRA), RCRA Enforcement and
Compliance Branch, U.S. Environmental Protection Agency, Region 4, Sam
Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia
30303, (404) 562-8588, or call, toll free, (800) 241-1754, and leave a
message, with your name and phone number, for David Langston to return
your call. You may also contact him by e-mail: langston.david@epa.gov. The EPACML accounts for: one-dimensional steady and uniform
advective flow; contaminant dispersion in the longitudinal, lateral,
and vertical directions; and sorption. However, advances in groundwater
fate and transport have been made in recent years and EPA proposes and
requests public comment on the use of the EPACMTP, which is a more
advanced groundwater fate and transport model, for this RCRA delisting.
The EPACML was limited to conditions of uniform groundwater flow.
It could not handle accurately the conditions of significant
groundwater mounding and non-uniform groundwater flow due to a high
rate of infiltration from the waste disposal units. These conditions
increase the transverse horizontal, as well as the vertical, spreading
of a contaminant plume.
The EPACMTP model overcomes the deficiencies of the EPACML in the
following way: The subsurface as modeled with the EPACMTP consists of
an unsaturated zone beneath a landfill and a saturated zone, the
underlying water table aquifer. Contaminants move vertically downward
through the unsaturated zone to the water table. The EPACMTP simulates
one-dimensional, vertically downward flow and transport of contaminants
in the unsaturated zone, as well as two-dimensional or three-
dimensional groundwater flow and contaminant transport in the
underlying saturated zone. The EPACML used a saturated zone module that
was based on a Gaussian distribution of the concentration of a chemical
constituent in the saturated zone. The module also used an
approximation to account for the initial mixing of the contaminant
entering at the water table (saturated zone) underneath the waste unit.
The module accounting for initial mixing in the EPACML could lead to
unrealistic groundwater concentrations. The enhanced EPACMTP model
incorporates a direct linkage between the unsaturated zone and
saturated zone modules which overcomes these limitations of the EPACML.
The following mechanisms affecting contaminant migration are accounted
for in the EPACMTP model: transport by advection and dispersion,
retardation resulting from reversible linear or nonlinear equilibrium
sorption on the soil and aquifer solid phase, and biochemical
degradation processes. The EPACML did not account for biochemical
degradation, and did not account for sorption as accurately as the
EPACMTP.
The EPACMTP consists of four major components:
1--A module that performs one-dimensional analytical and numerical
solutions for water flow and contaminant transport in the unsaturated
zone beneath a waste management unit;
2--A numerical module for steady-state groundwater flow subject to
recharge from the unsaturated zone;
3--A module of analytical and numerical solutions for contaminant
transport in the saturated zone; and
4--A Monte Carlo module for assessing the effect of the uncertainty
resulting from variations in model parameters on predicted receptor
well concentrations.
4. Where Can Technical Details on the EPACMTP Be Found?
For more information on DRAS and EPACMTP, please see 65 FR 75637-
75651, December 4, 2000; 65 FR 58015-58031, September 27, 2000; and 66
FR 9781-9798, February 12, 2001. The December 4, 2000 Federal Register
discusses the key enhancements of the EPACMTP and the details are
provided in the background documents to the proposed 1995 Hazardous
Waste Identification Rule (HWIR) (60 FR 66344, December 21, 1995). The
background documents are available through the RCRA HWIR FR proposal
docket (60 FR 66344, December 21, 1995) A summary of DRAS is presented
in 66 FR 9781-9798, February 12, 2001. Footnote 2 in Preamble section
I.B.2. above lists the URL addresses for Region 6 guidance on DRAS.
5. What Method Is EPA Proposing To Use To Determine Delisting Levels
for This Petitioned Waste?
Bekaert submitted to the EPA analytical data from its Dyersburg,
Tennessee plant and the Rogers, Arkansas plant. Samples of wastewater
treatment sludge were collected from roll-off containers over a one-
month period. A summary of analytical data is presented in Table 1 of
section II below, with analytical details in the Table footnotes.
After reviewing the analytical data and information on processes
and raw materials that Bekaert submitted in the delisting petition, EPA
developed a list of constituents of concern and calculated delisting
levels and risks using DRAS and EPACMTP DAFs as described above. EPA
requests public comment on this proposed method of calculating
delisting levels and risks for Bekaert's petitioned waste.
EPA considered two additional methods of evaluating Bekaert's
delisting petition and determining delisting levels: (1) Setting limits
on total concentrations of constituents in the waste that are more
conservative than results obtained by DRAS for total concentrations;
and (2) setting delisting levels at the Land Disposal Restrictions
(LDR) Universal Treatment Standards (UTS) levels in 40 CFR 268.48. The
UTS levels for Bekaert's constituents of concern are the following:
Arsenic: 5.0 mg/l TCLP; Barium: 21 mg/l TCLP; Cadmium: 0.11 mg/l TCLP;
Chromium: 0.60 mg/l TCLP; Cyanide Total: 590 mg/kg; Cyanide Amenable 30
mg/kg; Lead: 0.75 mg/l
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TCLP; Nickel: 11 mg/l TCLP; Silver: 0.14 mg/l TCLP; Vanadium: 1.6 mg/l;
Zinc: 4.3 mg/l TCLP.
II. Disposition of Delisting Petition
A. Summary of Delisting Petition Submitted by Bekaert Steel
Corporation, Dyersburg, Tennessee (Bekaert)
Bekaert initially petitioned EPA, Region 6, in September 11, 1995,
to exclude from the Rogers, Arkansas facility, a maximum annual weight
of 1,250 cubic yards of its F006 waste, on a generator-specific basis,
from the lists of hazardous wastes in 40 CFR part 261, subpart D.
Because of the identical construction and operation of Rogers, Arkansas
and the Dyersburg, Tennessee facilities, Bekaert petitioned EPA, Region
4, in October 28, 2002, to consider a delisting based on equivalent
data and operations. Bekaert petitioned the EPA to exclude from the
lists of hazardous wastes contained in 40 CFR 261.31 and 261.32, its
wastewater treatment sludges from its electroplating operations.
Specifically, in its petition, Bekaert petitioned the Agency to exclude
its wastewater treatment filter cake presently listed as EPA Hazardous
Waste No. F006--``Wastewater treatment sludges from electroplating
operations except from the following processes: (1) Sulfuric acid
anodizing of aluminum; (2) tin plating on carbon steel; (3) zinc
plating (segregated basis) on carbon steel; (5) cleaning/stripping
associated with tin, zinc, and aluminum plating on carbon steel; and
(6) chemical etching and milling of aluminum.'' The listed constituents
of concern for EPA Hazardous Waste No. F006 are: cadmium, hexavalent
chromium, nickel and cyanide (complexed). See 40 CFR part 261, Appendix
VII. Bekaert petitioned the EPA to exclude this waste because it does
not believe that the waste meets the criteria for which it was listed.
Bekaert also believes that the waste does not contain any other
constituents that would render it 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
(HSWA) of 1984. See section 222 of HSWA, 42 U.S.C. 6921(f), and 40 CFR
260.22(d)(2) through (4).
B. What Delisting Levels Did EPA Obtain With DRAS and EPACMTP?
In support of its petition, Bekaert submitted the previous petition
for the Rogers, Arkansas facility and documentation which supported
equivalency of the Dyersburg, Tennessee facility. Included within the
petition are: (1) Descriptions of its manufacturing and wastewater
treatment processes, including schematic diagrams; (2) a list of all
raw materials and Material Safety Data Sheets (MSDSs) for all trade
name products used in the manufacturing and waste treatment processes;
(3) results from total constituent analyses for fourteen metals
including the eight Toxicity Characteristic (TC) metals listed in Sec.
261.24 (i.e., the TC metals) and antimony, beryllium, copper, nickel,
thallium, and zinc from representative samples of the petitioned waste;
(4) results from the Toxicity Characteristic Leaching Procedure (TCLP,
SW-846 Method 1311) for fourteen metals which include the eight TC
metals, and antimony, beryllium, copper, nickel, thallium, and zinc
from representative samples of the petitioned waste; (5) results from
total constituent analysis for total and reactive sulfide and cyanide
for representative samples of the petitioned waste; (6) results from
total oil and grease analyses from representative samples of the
petitioned waste; (7) test results and information regarding the
hazardous characteristics of ignitability, corrosivity, and reactivity;
and (8) results from total constituent analyses for certain volatile
and semi-volatile organic compounds from representative samples of the
petitioned waste.
The hazardous constituents of concern for which F006 was listed are
hexavalent chromium and cyanide (complexed). Bekaert petitioned the EPA
to exclude its F006 waste because Bekaert does not believe that the
waste meets the criteria of the listing.
Table 1.--Waste Water Concentrations Zinc & Copper
[Metals Constituent Comparison Between Rogers, Arkansas F006 and Dyersburg, Tennessee F006]
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Cell 1 Cell 2 Cell 3 Cell 4 Cell 5 Average
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Zinc Concentration mg/l:
Dyersburg....................... 19875 20867 Inactive.................... 9978 Not present................. 16907
Rogers.......................... 11480 14350 Inactive.................... 16502 28700....................... 17758
Copper Concentration mg/l:
Dyersburg....................... 0 22.6 Inactive.................... 5.6 Not present................. 11.2
Rogers.......................... 70 50 Inactive.................... 70 50.......................... 60
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Table 2.--Metals Analysis F006 Filter Cake
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Rogers, Rogers, Rogers,
Total Metals mg/kg Dyersburg, Arkansas: Arkansas: Rogers, Arkansas:
Tennessee Petition 1997 Arkansas: 1998 1999
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Arsenic............................. <900 <5.00 ............. .............. .............
Barium.............................. 46.4 2.5 ............. .............. .............
Cadmium............................. 0.24 3.1 ............. .............. .............
Chromium............................ 13.6 68 ............. .............. .............
Copper.............................. 7.81 580 ............. .............. .............
Lead................................ 12.5 <5.0 ............. .............. .............
Selenium............................ 3.5 6.4 ............. .............. .............
Silver.............................. <0.9 1.2 ............. .............. .............
Zinc................................ 113 16000 ............. .............. .............
TCLP Metals mg/l:
Antimony.......................... <0.20 ............. ............. .............. .............
Arsenic........................... <0.20 <0.05 <0.10 1.92 <0.085
Barium............................ <0.050 1.3 0.18 0.078 <0.004
Cadmium........................... <0.040 <0.05 <0.01 <0.005 <0.005
[[Page 32650]]
Chromium.......................... <0.050 <0.05 <0.01 <0.007 <0.007
Copper............................ <0.050 ............. ............. .............. .............
Lead.............................. <0.10 <0.10 <0.10 <0.050 <0.05
Nickel............................ <0.10 ............. ............. .............. .............
Selenium.......................... <0.20 0.091 <0.10 <0.10 <0.10
Silver............................ <0.070 0.2 <0.01 0.0182 0.007
Zinc.............................. 26 ............. ............. .............. .............
Mercury Total mg/kg............... <0.8 <0.125 ............. .............. .............
Mercury TCLP mg/l................. <0.002 <0.005 <0.005 <0.002 <0.002
----------------------------------------------------------------------------------------------------------------
EPA concluded after reviewing Bekaert's waste management and waste
history information that no other hazardous constituents, other than
those tested for, are likely to be present in Bekaert's petitioned
waste. In addition, on the basis of test results and other information
provided by Bekaert, pursuant to Sec. 260.22, EPA concluded that the
petitioned waste will not exhibit any of the characteristics of
ignitability, corrosivity, or reactivity. See Sec. Sec. 261.21,
261.22, and 261.23, respectively.
During its evaluation of Bekaert's petition, EPA also considered
the potential impact of the petitioned waste on media other than
groundwater. With regard to airborne dispersal of waste, EPA evaluated
the potential hazards resulting from airborne exposure to waste
contaminants from the petitioned waste using an air dispersion model
for releases from a landfill. The results of this evaluation indicated
that there is no substantial present or potential hazard to human
health from airborne exposure to constituents from Bekaert's petitioned
waste. (A description of EPA's assessment of the potential impact of
airborne dispersal of Bekaert's petitioned waste is presented in the
RCRA public docket for today's proposed rule.)
EPA evaluated the potential impact of the petitioned waste on
surface water resulting from storm water runoff from a landfill
containing the petitioned waste, and found that the waste would not
present a threat to human health or the environment. (See the docket
for today's proposed rule for a description of this analysis). In
addition, EPA believes that containment structures at municipal solid
waste landfills can effectively control runoff, as Subtitle D
regulations (see 56 FR 50978, October 9, 1991) prohibit pollutant
discharges into surface waters. While some contamination of surface
water is possible through runoff from a waste disposal area, EPA
believes that the dissolved concentrations of hazardous constituents in
the runoff are likely to be lower than the extraction procedure test
results reported in today's proposed rule, because of the aggressive
acidic medium used for extraction in the TCLP. EPA also believes that,
in general, leachate derived from the waste will not directly enter a
surface water body without first traveling through the saturated
subsurface where dilution of hazardous constituents may occur.
Transported contaminants would be further diluted in the receiving
water body. Subtitle D controls would minimize significant releases to
surface water from erosion of undissolved particulates in runoff.
In order to account for possible variability in the generation
rate, EPA calculated delisting levels using a waste volume of 1,250
cubic yards. Delisting levels and risk levels calculated by DRAS, using
the EPACMTP model, are presented in Tables 3, 4, and 5 below. DRAS
found that the major pathway for human exposure to this waste is
groundwater ingestion, and the majority of the delisting and risk
levels for the TCLP leachate of the waste were calculated based on that
pathway. EPA used DRAS-calculated values based on MCLs, when these
would result in more conservative delisting levels. The input values
required by DRAS were the chemical constituents in Bekaert's petitioned
waste; their maximum reported concentrations in the TCLP extract of the
waste and in the unextracted waste (See Table 1, Preamble section
II.A.); the maximum annual volume to be disposed (1,250 cubic yards) in
a landfill; the desired risk level, which was chosen to be no worse
than 10-5 for carcinogens; and a hazard quotient of no
greater than 1 [1.48] for non-carcinogens. The only carcinogenic
constituent detected in the waste is cadmium (arsenic not detected in
the Dyersburg, TN, waste). Cadmium also has non-carcinogenic toxic
effects.
Table 3.--Delisting and Risk Levels Calculated by DRAS With EPACMTP Model for Bekaert's--Petitioned Waste Based
on Limiting Pathway
----------------------------------------------------------------------------------------------------------------
DRAS-calculated
DRAS-calculated hazard quotient
Delisting level in risk for maximum for maximum
Constituent TCLP based on DAF concentration of concentration of
limiting pathway carcinogen in non-carcinogen
waste in waste
----------------------------------------------------------------------------------------------------------------
Inorganic Constituents
----------------------------------------------------------------------------------------------------------------
Antimony................................... 2.31 34.3 ................ 1.300
Arsenic.................................... 0.0419 19.2 1.01 x 10-5 4.39 x 10-2
Barium..................................... \4\ 328 27.8 ................ 1.000
Cadmium.................................... \4\2.52 30.0 3.45 x 10-5 0.999
[[Page 32651]]
Chromium................................... \4\ 49.71 x 10 3850 ................ 1.000
Copper..................................... \4\ 4.71 x 10 7010 ................ 10.000
Cyanide.................................... 60.5 18 ................ 1.000
Lead....................................... \5\ 5.0 5000 ................ ................
Nickel..................................... 127 37.6 ................ 1.000
Selenium................................... \6\ 9.74 11.6 ................ 1.000
Silver..................................... \6\ 17.2 20.5 ................ 1.000
Mercury.................................... \6\ 0.364 74.5 ................ 2.000
Zinc....................................... 1260 24.9 ................ 1.000
---------------------
Total Hazard Quotient for All Waste .................. ........... ................ 21.400
Constituents............................
=====================
Total Carcinogenic Risk for the Waste .................. ........... 1.01 x 10-5 ................
(due to Arsenic, Cadmium, Hexavalent
Chromium)...............................
----------------------------------------------------------------------------------------------------------------
\4\ Level exceeds characteristic level for this constituent. Therefore, this concentration in TCLP cannot be
used for means of delisting the waste.
\5\ Lead had no limiting value, therefore, characteristic level was used in place of limiting pathway.
\6\ Concentration calculated here exceeds characteristic level for this constituent. Although the carcinogenic
risk is acceptable, the calculated hazard quotient exceeds the necessary standard. Additionally, 4
constituents exceed the TCLP characteristic level for hazardous waste.
Table 4.--Delisting and Risk Levels Calculated by DRAS With EPACMTP Model for Bekaert's Petitioned Waste Based
on MCLS
----------------------------------------------------------------------------------------------------------------
DRAS-calculated
DRAS-calculated hazard quotient
MCL or drinking Delisting level risk for maximum for maximum
Constituent water standard (mg/l TCLP) DAF concentration of concentration of
(mg/l) carcinogen in non-carcinogen
waste in waste
----------------------------------------------------------------------------------------------------------------
Inorganic Constituents
----------------------------------------------------------------------------------------------------------------
Antimony..................... 0.006 0.922 34.3 ................ 4.00 x 10-1
Arsenic...................... 0.010 0.516 19.2 6.16 x 10-5 2.67 x 10-1
Barium....................... 2.0 \7\ 249 27.8 ................ 7.60 x 10-1
Cadmium...................... 0.005 0.672 30.0 3.45 x 10-12 2.66 x 10-1
Chromium..................... 0.10 \7\ 1720 3850 ................ 1.77 x 10-3
Copper....................... \8\ 1.30 40800 7010 ................ 8.66 x 10-1
Cyanide...................... 0.20 16.1 18 ................ 1.33 x 10-1
Lead......................... 0.015 \7\ 336 5000 ................ ................
Nickel....................... \9\ 0.10 16.9 37.6 ................ 1.34 x 10-1
Selenium..................... 0.05 \7\ 2.60 11.6 ................ 1.33 x 10-1
Silver....................... \8\ 0.10 \7\ 9.16 20.5 ................ 2.66 x 10-1
Mercury...................... 0.002 0.149 74.5 ................ 1.83
Zinc......................... \8\ 5.0 558 24.9 ................ 4.44 x 10-1
------------------
Total Hazard Quotient for ............... ............... ........... ................ 5.50
All Waste Constituents....
==================
Total Carcinogenic Risk for ............... ............... ........... 6.16 x 10-5 ................
the Waste (due to Arsenic,
Cadmium, Hexavalent
Chromium).................
----------------------------------------------------------------------------------------------------------------
\7\ DRAS Calculated level exceeds TCLP Characteristic level for this constituent.
\8\ The Safe Drinking Water Act standard is a recommended secondary standard, rather than an enforceable MCL.
\9\ MCL for Nickel was remanded on February 9, 1995, such that no legal limit exists. However, it is still
recommended that nickel be monitored and exposure minimized until such time EPA reconsiders the MCL standard.
[[Page 32652]]
Table 5.--Delisting and Risk Levels Calculated by DRAS With EPACMTP Model for Bekaert's Petitioned Waste Based
on MCL/Limiting Pathway, Detection Level, and Performance Demonstrated Concentrations From F006 Testing
----------------------------------------------------------------------------------------------------------------
DRAS-Calculated
DRAS-Calculated Hazard Quotient
Delisting Level Risk for Maximum for Maximum
Constituent (mg/l TCLP) DAF Concentration of Concentration of
Carcinogen in Non-Carcinogen
Waste in Waste
----------------------------------------------------------------------------------------------------------------
Inorganic Constituents
----------------------------------------------------------------------------------------------------------------
Antimony...................................... 0.60 34.3 ................ 2.60 x 10 -1
Arsenic....................................... <0.20 19.2 2.39 x 10 -5 1.04 x 10 -1
Barium........................................ 50 27.8 ................ 1.53 x 10 -1
Cadmium....................................... 0.50 30.0 3.45 x 10 -12 1.98 x 10 -1
Chromium...................................... 1.0 3850 ................ 1.03 x 10 -6
Copper........................................ 100 7010 ................ 2.12 x 10 -3
Cyanide....................................... <0.005 18 ................ 4.13 x 10 -5
Lead.......................................... <0.10 5000 ................ ................
Nickel........................................ 10 37.6 ................ 7.90 x 10 -2
Selenium...................................... <0.20 11.6 ................ 1.03 x 10 -2
Silver........................................ 1 20.5 ................ 5.82 x 10 -2
Mercury....................................... <0.005 74.5 ................ 3.95 x 10 -2
Zinc.......................................... 125 24.9 ................ 9.95 x 10 -2
------------------
Total Hazard Quotient for All Waste ............... ........... ................ 1.00
Constituents...............................
------------------
Total Carcinogenic Risk for the Waste (due ............... ........... 2.39 x 10 -5 ................
to Arsenic, and Cadmium, which were non-
detect in the waste.)......................
==================
----------------------------------------------------------------------------------------------------------------
The Safe Drinking Water Act standard for copper is a recommended secondary standard, rather than an enforceable
MCL.
EPA proposes to use the delisting levels in the TCLP leachate
calculated by the DRAS, using the EPACMTP (Table 5) as well as the
performance levels demonstrated during the F006 testing. These
delisting levels are summarized in Table 6, below.
Table 6.--Summary of Delisting Levels for Bekaert's Petitioned Waste
------------------------------------------------------------------------
Delisting
Constituent level (mg/l
TCLP)
------------------------------------------------------------------------
Antimony................................................ 0.60
Arsenic................................................. <0.20
Barium.................................................. 50.0
Cadmium................................................. 0.50
Chromium................................................ 1.0
Copper.................................................. 100
Cyanide................................................. <0.005
Lead.................................................... <0.10
Nickel.................................................. 10.0
Selenium................................................ <0.20
Silver.................................................. 1.0
Mercury................................................. <0.005
Zinc.................................................... 125
------------------------------------------------------------------------
C. Conclusion
After reviewing Bekaert's processes, the EPA concludes that (1) no
hazardous constituents of concern are likely to be present in Bekaert's
waste at levels that would harm human health and the environment; and
(2) the petitioned waste does not exhibit any of the characteristics of
ignitability, corrosivity, or reactivity. See 40 CFR 261.21, 261.22,
and 261.23, respectively.
EPA believes that Bekaert's petitioned waste will not harm human
health and the environment when disposed in a nonhazardous waste
landfill if the delisting levels for land disposal as proposed in
Preamble section II.B. are met.
EPA is finalizing it's decision to exclude Bekaert's petitioned
waste from being listed as F006, based on descriptions of waste
management and waste history, evaluation of the results of waste sample
analysis, and on the requirement that Bekaert's petitioned waste must
meet proposed delisting levels before disposal. Thus, EPA's decision is
based on verification testing conditions. When the rule becomes
effective, the exclusion will be valid only if the petitioner
demonstrates that the petitioned waste meets the verification testing
conditions and delisting levels in the amended Table 1 of Appendix IX
of 40 CFR part 261. When the rule becomes final and EPA approves that
demonstration, the petitioned waste would not be subject to regulation
under 40 CFR parts 262 through 268 and the permitting standards of 40
CFR part 270. Although management of the waste covered by this petition
would, upon final promulgation, be relieved from Subtitle C
jurisdiction, the waste would remain a solid waste under RCRA. As such,
the waste must be handled in accordance with all applicable Federal,
State, and local solid waste management regulations. Pursuant to RCRA
section 3007, EPA may also sample and analyze the waste to determine if
delisting conditions are met.
III. Limited Effect of Federal Exclusion
Will this Rule Apply in All States?
This Direct Final Rule, if promulgated, would be issued under the
Federal (RCRA) delisting program. States, however, are allowed to
impose their own, non-RCRA regulatory requirements that are more
stringent than EPA's, pursuant to section 3009 of RCRA. These more
stringent requirements may include a provision which prohibits a
Federally issued exclusion from taking effect in the States. Because a
petitioner's waste may be regulated under a dual system (i.e., both
Federal and State programs), petitioners are urged to contact State
regulatory authorities to determine the current status of their wastes
under the State laws. Furthermore, some States are authorized to
administer a delisting program in lieu of the Federal program, i.e., to
make their own delisting decisions. Therefore, this exclusion, if
promulgated, would not apply in those authorized States. If the
petitioned
[[Page 32653]]
waste will be transported to any State with delisting authorization,
Bekaert must obtain delisting authorization from that State before the
waste may be managed as nonhazardous in that State.
IV. Effective Date
This rule, if made final, will become effective 45 days from this
date of publication, unless adverse comments are received. 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. That is the case here, because this rule, if finalized,
would reduce the existing requirements for the petitioner. In light of
the unnecessary hardship and expense that would be imposed on this
petitioner by an effective date six months after publication and the
fact that a six-month deadline is not necessary to achieve the purpose
of section 3010, EPA believes that this exclusion should be effective
45 days from this date of publication. These reasons also provide a
basis for making this rule effective immediately, upon final
publication, under the Administrative Procedure Act, pursuant to 5
U.S.C. 553(d).
V. Paperwork Reduction Act
Information collection and record-keeping requirements associated
with this proposed rule have been approved by the Office of Management
and Budget (OMB) under the provisions of the Paperwork Reduction Act of
1980 (Public Law 96-511, 44 U.S.C. 3501 et seq.) and have been assigned
OMB Control Number 2050-0053.
VI. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This rulemaking involves environmental monitoring or measurement.
Consistent with the Agency's Performance Based Measurement System
(``PBMS''), EPA proposes not to require the use of specific, prescribed
analytical methods, except when required by regulation in 40 CFR parts
260 through 270. Rather the Agency plans to allow the use of any method
that meets the prescribed performance criteria. The PBMS approach is
intended to be more flexible and cost-effective for the regulated
community; it is also intended to encourage innovation in analytical
technology and improved data quality. EPA is not precluding the use of
any method, whether it constitutes a voluntary consensus standard or
not, as long as it meets the performance criteria specified.
VII. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``UMRA''), Public Law 104-4, which was signed into law on March 22,
1995, EPA generally must prepare a written statement for rules with
Federal mandates that may result in estimated costs to State, local,
and tribal governments in the aggregate, or to the private sector, of
$100 million or more in any one year. When such a statement is required
for EPA rules, under section 205 of the UMRA EPA must identify and
consider alternatives, including the least costly, most cost-effective
or least burdensome alternative that achieves the objectives of the
rule. EPA must select that alternative, unless the Administrator
explains in the final rule why it was not selected or it is
inconsistent with law. Before EPA establishes regulatory requirements
that may significantly or uniquely affect small governments, including
tribal governments, it must develop under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, giving them meaningful and
timely input in the development of EPA regulatory proposals with
significant Federal intergovernmental mandates, and informing,
educating, and advising them on compliance with the regulatory
requirements.
The UMRA generally defines a Federal mandate for regulatory
purposes as one that imposes an enforceable duty upon State, local, or
tribal governments or the private sector. EPA finds that today's
delisting decision is deregulatory in nature and does not impose any
enforceable duty on any State, local, or tribal governments or the
private sector. In addition, the delisting does not establish any
regulatory requirements for small governments and so does not require a
small government agency plan under UMRA section 203.
VIII. Regulatory Flexibility Act, as Amended by the Small Business
Regulatory Enforcement and Fairness Act
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612,
whenever an agency is required to publish a general notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the impact of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
No regulatory flexibility analysis is required, however, if the
Administrator or delegated representative certifies that the rule will
not have a significant economic impact on a substantial number of small
entities.
This rule, when promulgated, will not have an adverse economic
impact on any small entities since its effect would be to reduce the
overall costs of EPA's hazardous waste regulations and would be limited
to one facility. Accordingly, I hereby certify that this regulation, if
promulgated, will not have a significant economic impact on a
substantial number of small entities. This regulation, therefore, does
not require a regulatory flexibility analysis.
IX. Executive Order 12866
Under Executive Order 12866, (58 FR 51735, October 4, 1993) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities or the principles set forth in the
Executive Order.
OMB has exempted this direct final rule from the requirement for
OMB
[[Page 32654]]
review under section (6) of Executive Order 12866.
X. Executive Order 13045
The Executive Order 13045 is entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997). This order applies to any rule that EPA determines (1) is
economically significant as defined under Executive Order 12866, and
(2) the environmental health or safety risk addressed by the rule has a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. This rule is
not subject to Executive Order 13045 because this is not an
economically significant regulatory action as defined by Executive
Order 12866.
XI. Executive Order 13084 Affecting Indian Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly affects or uniquely affects
the communities of Indian tribal governments, and that imposes
substantial direct compliance costs on those communities, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by the tribal governments. If the mandate is
unfunded, EPA must provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian tribal governments ``to meaningful and timely input'' in the
development of regulatory policies on matters that significantly or
uniquely affect their communities of Indian tribal governments. Today's
rulemaking does not significantly or uniquely affect the communities of
Indian tribal governments. Accordingly, the requirements of section
3(b) of Executive Order 13084 do not apply to this direct final rule.
XII. Submission to Congress and General Accounting Office
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 Congress and to the Comptroller General of the United
States.
The EPA is not required to submit a rule report regarding today's
action under section 801 because this is a rule of particular
applicability, etc. Section 804 exempts from section 801 the following
types of rules: rules of particular applicability; rules relating to
agency management or personnel; and rules of agency organization,
procedures, or practice that do not substantially affect the rights or
obligations of non-agency parties. See 5 U.S.C. 804(3). This rule will
become effective 45 days from the date of this publication as a direct
final rule in the Federal Register.
XIII. Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999) requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that impose substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. The EPA also may not issue a
regulation that has federalism implications and that preempts State law
unless the Agency consults with State and local officials early in the
process of developing the proposed regulation.
This action does not have federalism implication. It will not have
a substantial direct effect on 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, because it affects only one facility.
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: May 12, 2003.
James S. Kutzman,
Acting Director, Waste Management Division.
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
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, part 261 add the following wastestream 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
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Bekaert Industries, Inc........ Dyersburg, TN................. Dewatered wastewater treatment plant (WWTP)
sludge (EPA Hazardous Waste No. F006)
generated at a maximum annual rate of 1,250
cubic yards per calendar year after December
31, 2002 and disposed of in a Subtitle D
landfill. For the exclusion to be valid,
Bekaert must implement a testing program that
meets the following Paragraphs:
[[Page 32655]]
(1) Delisting Levels: All leachable
concentrations for those constituents
listed below in (i) and (ii) must not
exceed the following levels (mg/l). The
petitioner must use an acceptable leaching
method, for example SW 846, Method 1311 to
measure constituents in the waste leachate.
Dewatered WWTP sludge (i) Inorganic
Constituents Antimony 0.60; Arsenic <0.20;
Barium 50; Chromium 1.0; Copper 100; Lead
<0.10; Nickel 10.0; Selenium <0.20; Silver
1.0; Zinc 125; and mercury <0.005.
(2) Waste Holding and Handling:
(A) Bekaert must store the dewatered WWTP
sludge as described in its RCRA permit,
or continue to dispose of as hazardous
all dewatered WWTP sludge generated,
until they have completed verification
testing described in Paragraph (3)(A) and
(B), as appropriate, and valid analyses
show that paragraph (1) is satisfied.
(B) Levels of constituents measured in the
samples of the dewatered WWTP sludge that
do not exceed the levels set forth in
Paragraph (1) are non-hazardous. Bekaert
can manage and dispose the nonhazardous
dewatered WWTP.
(A) Initial Verification Testing: After
EPA grants the final exclusion, Bekaert
must do the following:
(i) Collect and analyze composites of
the dewatered WWTP sludge.
(ii) Make two composites of
representative grab samples (according
to SW 846 methodologies) collected.
(iii) Analyze the waste, before
disposal, for all of the constituents
listed in Paragraph 1.
(iv) Sixty (60) days after this
exclusion becomes final, report to EPA
the operational and analytical test
data, including quality control
information.
(B) Subsequent Verification Testing:
Following written notification by EPA,
Bekaert may substitute the testing
conditions in (3)(B) for (3)(A). Bekaert
must continue to monitor operating
conditions, and analyze representative
samples (according to SW 846
methodologies) each quarter of operation
during the first year of waste
generation. The samples must represent
the waste generated during the quarter.
(4) Changes in Operating Conditions: If
Bekaert 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 as established under
Paragraph (1) (by illustration, but not
limitation, changes in equipment or
operating conditions of the treatment
process), they must notify EPA in writing;
they may no longer handle the waste
generated from the new process as
nonhazardous until the waste meets the
delisting levels set in Paragraph (1) and
they have received written approval to do
so from EPA.
(5) Data Submittals: Bekaert must submit the
information described below. If Bekaert
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. Bekaert must:
(A) Submit the data obtained through
Paragraph 3 to the Region 4 RCRA
Enforcement & Compliance, U.S. EPA, 61
Forsyth St SW, Atlanta, Georgia 30303
8909, within the time specified.
(B) Compile records of operating
conditions and analytical data from
Paragraph (3), summarized, and maintained
on-site for a minimum of five years.
(C) Furnish these records and data when
EPA or the State of Tennessee request
them for inspection.
(D) A company official having supervisory
responsibility should 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, Bekaert possesses or is
otherwise made aware of any environmental
data (including but not limited to
leachate data or groundwater monitoring
data) or any other data relevant to the
delisted waste indicating that any
constituent identified for the delisting
verification testing is at a level higher
than the delisting level allowed by the
Regional Administrator or his delegate in
granting the petition, then the facility
must report the data, in writing, to the
Regional Administrator or his delegate
within 10 days of first possessing or
being made aware of that data.
[[Page 32656]]
(B) If the annual testing of the waste
does not meet the delisting requirements
in Paragraph 1, Bekaert must report the
data, in writing, to the Regional
Administrator or his delegate within 10
days of first possessing or being made
aware of that data.
(C) If Bekaert 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 Regional Administrator or his
delegate 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.
(D) If the Regional Administrator or his
delegate determines that the reported
information does require Agency action,
the Regional Administrator or his
delegate will notify the facility in
writing of the actions the Regional
Administrator or his delegate 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 Agency action is not
necessary. The facility shall have 10
days from the date of the Regional
Administrator or his delegate'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
Regional Administrator or his delegate
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
or his delegate's determination shall
become effective immediately, unless the
Regional Administrator or his delegate
provides otherwise.
(7) Notification Requirements: Bekaert 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 they
will transport the delisted waste
described above for disposal, 60 days
before beginning such activities.
(B) Update the one-time written
notification if they ship the delisted
waste into a different disposal facility.
* * * * * * *
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[FR Doc. 03-13568 Filed 5-30-03; 8:45 am]
BILLING CODE 6560-50-P