[Federal Register: September 11, 2003 (Volume 68, Number 176)]
[Rules and Regulations]
[Page 53517-53520]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11se03-13]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-7557-5]
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 the
Southeastern Public Service Authority (SPSA) and Onyx Environmental
Services (Onyx) to exclude (or delist), on a one-time basis, a
combustion ash from the lists of hazardous wastes.
After careful analysis, we have concluded that the petitioned waste
does not present an unacceptable risk when disposed of in a Subtitle D
(nonhazardous waste) landfill. This exclusion applies to combustion ash
previously generated at the SPSA Power Plant in Portsmouth, Virginia,
which is currently located at the SPSA Regional Landfill in Suffolk,
Virginia. Accordingly, this final rule conditionally excludes a
specific volume of the petitioned waste from the requirements of the
hazardous waste regulations under the Resource Conservation and
Recovery Act (RCRA) when the petitioned waste is disposed of in a
Subtitle D landfill which is permitted, licensed, or registered by a
State to manage municipal or industrial solid waste.
EFFECTIVE DATE: September 11, 2003.
ADDRESSES: The official docket for this rule is located at the offices
of U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA, 19103-2029,
and is available for you to view from 8:30 a.m. to 5 p.m., Monday
through Friday, except on Federal holidays. Please call David M.
Friedman at (215) 814-3395 for appointments. The public may copy
material from the docket at $0.15 per page.
FOR FURTHER INFORMATION CONTACT: For information concerning this
document, please contact David M. Friedman at the address above, at
(215) 814-3395, or via e-mail at friedman.davidm@epa.gov.
SUPPLEMENTARY INFORMATION:
Docket
EPA has established an official docket for this action. The
official docket consists of the petition submitted by SPSA/Onyx, the
results of a risk assessment which evaluates the potential impact of
the petitioned waste on human health and the environment, any public
comments received, and other information related to this action. The
official docket for this action is kept in a paper format, and is
maintained at the address in the ADDRESSES section at the beginning of
this document.
Outline
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 generator supply?
III. SPSA/Onyx's Delisting Petition
A. What waste is the subject of SPSA/Onyx's petition?
B. What information did SPSA/Onyx submit to support 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 Comments Received on the Proposed Exclusion
A. Who submitted comments on the proposed rule?
B. Comments and responses by EPA.
VI. Administrative Assessments
I. Overview Information
On June 18, 2003, we proposed to grant a petition submitted by
SPSA/Onyx to exclude (or delist) from the definition of hazardous waste
on a one-time basis, a combustion ash previously generated at the SPSA
Power Plant in Portsmouth, Virginia, which is currently located at the
SPSA Regional Landfill in Suffolk, Virginia. Today we are finalizing
the decision to grant a conditional exclusion as described in the June
18, 2003, proposed rule.
II. Background
A. What Is a Delisting Petition?
A delisting petition is a formal request from a generator asking
EPA to exclude a specific waste from the lists of hazardous waste
contained in the RCRA regulations, because the generator believes that
its waste should not be considered hazardous.
In order for a petition to succeed, a petitioner must first show
that a waste generated at its facility does not meet any of the
criteria for which the waste was listed. The criteria which we use to
list wastes are found in 40 CFR 261.11. An explanation of how these
criteria apply to a particular waste is contained in the background
document for that listed waste.
In addition, the petitioner must demonstrate that the waste does
not exhibit any of the hazardous waste characteristics defined in
subpart C of 40 CFR part 261 (i.e., ignitability, corrosivity,
reactivity, and toxicity), and must present sufficient information for
us to determine whether any other factors (including additional
constituents) warrant retaining the waste as a hazardous waste.
A generator remains obligated under RCRA to confirm that its waste
remains non-hazardous based on the hazardous waste characteristics
defined in subpart C of 40 CFR part 261, even if EPA has delisted its
waste.
B. What Regulations Allow a Hazardous Waste Generator To Petition for a
Delisting of Its Waste?
Under 40 CFR 260.20 and 260.22, 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 part 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 of Title 40 of the Code of Federal Regulations. 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.
[[Page 53518]]
C. What Information Must the Generator 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, the Administrator must determine that the waste is not
hazardous for any other reason.
III. SPSA/Onyx's Delisting Petition
A. What Waste Is the Subject of SPSA/Onyx's Petition?
SPSA is the regional solid waste management agency for southeastern
Virginia, where it operates a resource recovery facility consisting of
a Refuse Derived Fuel (RDF) Plant and a Power Plant, and a disposal
facility consisting of a Regional Landfill.
Onyx Environmental Services is a company that provides a wide range
of environmental services to other companies. These services include
hazardous and non-hazardous waste management.
On April 7, 2003, SPSA/Onyx petitioned EPA to exclude on a one-time
basis a combustion ash generated at SPSA's waste-to-energy facility in
Portsmouth, Virginia. The ash which is the subject of this petition is
currently located at SPSA's Regional Landfill in Suffolk, Virginia. The
total volume of the subject combustion ash at the Regional Landfill was
determined by SPSA/Onyx to be 1410 cubic yards.
The ash was produced by the routine combustion of a batch of
municipal and commercial solid waste which was processed in SPSA's RDF
plant and burned in SPSA's Power Plant in Portsmouth, Virginia. Due to
a shipping error, a small amount of this waste consisted of materials
containing the spent non-halogenated solvent, methyl ethyl ketone (EPA
Hazardous Waste Number F005). See the June 18, 2003, Federal Register,
(68 FR 36528) for more details.
In the June 18, 2003 Federal Register, we described how a portion
of the combustion ash had been used as daily cover in the Regional
Landfill before SPSA was notified that the ash was subject to
regulation as a hazardous waste. Furthermore, we stated that the area
of the Landfill where the combustion ash was used as cover was cordoned
off and that operations were suspended in this area. While this
statement was true at the time that the petition was submitted, we have
since been informed by SPSA that the Virginia Department of
Environmental Quality has allowed operations to resume in this portion
of the Landfill. However, the area in which the subject combustion ash
is located has been marked in case removal of the ash is required. The
resumption of operations does not impact the results of EPA's
evaluation of the risks associated with management of this waste.
B. What Information Did SPSA/Onyx Submit To Support This Petition?
In order to support the petition, SPSA/Onyx submitted detailed
information related to the shipments of materials received for
destruction at SPSA's Power Plant and detailed analytical results from
representative samples of the ash obtained by SPSA/Onyx on October 15,
2002, and January 28, 2003.
IV. EPA's Evaluation and Final Decision
A. Why Is EPA Approving This Petition?
SPSA/Onyx petitioned EPA to exclude or delist on a one-time basis,
the 1410 cubic yards of combustion ash currently located at the SPSA
Regional Landfill because SPSA/Onyx believes that the petitioned waste
does not meet the criteria for which it was listed as a hazardous
waste, nor does it exhibit any characteristic of a hazardous waste.
SPSA/Onyx also believes that the waste does not contain other
constituents in concentrations that would cause it to be hazardous.
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 of RCRA, 42 U.S.C. 6921(f), and 40 CFR
260.22(a)(1) and (2).
On June 18, 2003, we proposed to conditionally exclude SPSA/Onyx's
combustion ash from the list of hazardous wastes in 40 CFR 261.31, and
requested public comment on the proposed rule. For reasons stated in
both the proposed rule and this document, we believe that SPSA/Onyx's
combustion ash should be excluded from hazardous waste regulation.
B. What Limitations Are Associated With This Exclusion?
This exclusion applies only to the estimated 1410 cubic yards of
ash currently located at the SPSA Regional Landfill as described in
SPSA/Onyx's petition. No ash other than the ash described in this
petition could be managed as nonhazardous waste under this exclusion.
SPSA/Onyx state in their petition that the waste, if delisted, will
remain at the SPSA Regional Landfill. However, as a matter of policy,
EPA does not specify a specific location for disposal of a delisted
waste, only that it be disposed of in a Subtitle D landfill. In order
to adequately track wastes that have been delisted, in the event that a
decision is made to dispose of all or part of the ash off-site, we will
require that SPSA/Onyx provide a one-time notification to any State
regulatory agency to which or through which the delisted waste will be
transported for disposal at least sixty (60) calendar days prior to
commencing these activities.
C. When Is the Final Rule Effective?
This rule is effective September 11, 2003. 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 (that is, upon publication in the Federal
Register) under the Administrative Procedure Act, pursuant to 5 U.S.C.
553(d).
D. How Does This Action Affect States?
Because EPA is issuing today's exclusion under the Federal RCRA
delisting program, only States subject to Federal RCRA delisting
provisions would be directly affected. This would exclude two
categories of States: States having a dual system that includes Federal
RCRA requirements and their own requirements, and States which have
received EPA's authorization to make their own delisting decisions. We
describe these two situations below.
We allow states to impose their own non-RCRA 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,
or 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
program.
We have also authorized some States to administer a delisting
program in place of the Federal program; that is, to make State
delisting decisions.
[[Page 53519]]
Therefore, this exclusion does not necessarily apply within those
authorized States. If SPSA/Onyx transports the petitioned waste to, or
manages the waste in, any State with delisting authorization, SPSA/Onyx
must obtain delisting approval from that State before it can manage the
waste as nonhazardous in that State.
V. Public Comments Received on the Proposed Exclusion
A. Who Submitted Comments on the Proposed Rule?
We received public comments on the June 18, 2003, proposed
exclusion from one individual in Portsmouth, Virginia.
B. Comments and Responses From EPA
Comment: The solvent rags were incorrectly classified as a spent
solvent waste (F005), and, therefore, are not hazardous waste. In order
to be a F005 listed waste, the spent solvent would have to contain any
concentration of the solvents specified in the F005 listing, and
contain at least 10 percent by volume of any of the solvents listed in
F001, F002, F003, or F004. A solvent consisting of 100 percent methyl
ethyl ketone would not be considered an F005 listed waste.
Response: The commenter incorrectly reads the spent solvent
listings. On May 19, 1980, EPA promulgated the first phase of the
hazardous waste regulations including the spent solvent listings
(Hazardous waste nos. F001-F005) (See 40 CFR 261.31). These listings
applied only to spent solvents resulting from the use of individual
solvents that were technical grade or in pure form, and the still
bottoms from the recovery of these spent solvents. EPA soon recognized
that limiting the universe of the spent solvent listings to wastes
resulting from the use of only single ingredient solvents created a
regulatory loophole by allowing wastes resulting from the use of
mixtures containing one or more of the listed solvents to remain
unregulated. In the final rule published in the Federal Register on
December 31, 1985 (50 FR 53315), EPA amended these listings to include
spent solvents resulting from the use of solvent mixtures or blends
which contained, before use, 10 percent or more total listed solvent by
volume in addition to spent solvents resulting from the use of listed
single ingredient solvents. Therefore, the current listings for spent
solvents (such as the F005 listing) apply to the following three (3)
categories: spent solvents resulting from the use of individual (single
ingredient) listed solvents that are technical grade or in pure form,
spent solvents resulting from the use of solvent mixtures or blends
which contain, before use, 10 percent or more total listed solvent by
volume, and still bottoms from the recovery of any of these spent
solvents.
Comment: The commenter noted that although lead and chromium were
present in detectable concentrations in the total constituent analysis,
they were not present above the reporting limit when the Toxicity
Characteristic Leaching Procedure (TCLP) analysis was performed on this
waste. The commenter theorized that the presence of iron in the
combustion ash was masking the TCLP analysis for lead and chromium, and
requested that EPA require that the ash be analyzed for total iron
concentration.
Response: After careful consideration, we have decided not to ask
SPSA/Onyx to collect additional samples for iron analysis. There are a
number of factors that affect the leaching potential of inorganic
constituents. Among them are the pH, redox conditions, liquid-to-solid
ratio, and solubility. While the addition of iron in the form of fines,
filings, or dust, may temporarily retard the leaching of lead, it does
not provide long-term treatment. Therefore, EPA determined that this
practice constitutes ``impermissible dilution'' when done for the
purpose of achieving a treatment standard for lead under the land
disposal restrictions regulations. (See 40 CFR 268.3(d)).
However, this is not the case at SPSA's waste-to-energy facility
where SPSA aggressively removes ferrous (and aluminum) metals from the
waste stream. Large pieces of metal are manually removed from the waste
stream both at SPSA's transfer stations and on the tipping floor of the
RDF Plant. Then, a system of magnets removes the small ferrous metal
items from the waste stream prior to it being sent to the power plant
for combustion, thereby significantly reducing levels of iron in the
combustion ash. SPSA performs TCLP metals analysis on the ash generated
by its waste-to-energy facility on a quarterly basis.
VI. Administrative Assessments
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a rule of general applicability and therefore is not a
``regulatory action'' subject to review by the Office of Management and
Budget. Because this action is a rule 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, 203, and 205 of the Unfunded Mandates
Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because the rule will affect
only one facility, it will not significantly or uniquely affect small
governments, as specified in section 203 of UMRA, or communities of
Indian tribal governments, as specified in Executive Order 13175 (65 FR
67249, November 6, 2000). For the same reason, this rule 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 (64 FR 43255, August 10, 1999). This
rule also is not subject to Executive Order 13045 (62 FR 19885, April
23, 1997), because it is not economically significant.
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) do not apply. As required by
section 3 of Executive Order 12988 (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. 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.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. Section 804 exempts from section 801 the following types
of rules (1) rules of particular applicability; (2) rules relating to
agency management or personnel; and (3) rules of agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties (5 U.S.C. 804(3)). EPA is not
required to submit a rule report regarding today's action under section
801 because this is a rule of particular applicability.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
[[Page 53520]]
Dated: September 2, 2003.
Donald S. Welsh,
Regional Administrator, Region III.
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For the reasons set forth in the preamble, 40 CFR part 261 is amended
as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
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1. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
Appendix IX of Part 261--[Amended]
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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
Table 1.--Wastes Excluded From Non-Specific Sources
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Facility Address Waste description
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* * * * * * *
Southeastern Public Service Authority Suffolk, Virginia........... Combustion ash generated from the
(SPSA) and Onyx Environmental Service burning of spent solvent methyl ethyl
(Onyx). ketone (Hazardous Waste Number F005)
and disposed in a Subtitle D landfill.
This is a one-time exclusion for 1410
cubic yards of ash and is effective
after September 11, 2003.
(1) Reopener Language
(a) If SPSA and/or Onyx 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 SPSA and/or Onyx
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, SPSA/
Onyx must provide a one-time written
notification to any State Regulatory
Agency to which or through which the
delisted waste described above will be
transported at least sixty (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. 03-23161 Filed 9-10-03; 8:45 am]
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