[Federal Register Volume 64, Number 65 (Tuesday, April 6, 1999)]
[Rules and Regulations]
[Pages 16643-16647]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8480]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-6320-4]
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) today is granting a
petition submitted by Aluminum Company of America (Alcoa), Pittsburgh,
Pennsylvania, to exclude (or ``delist'') certain solid wastes generated
by its wastewater treatment plant from the lists of hazardous wastes
contained in subpart D of 40 CFR part 261. EPA has concluded that the
petitioned waste is not a hazardous waste when disposed of in a
subtitle D landfill. This exclusion applies only to the 16,772 cubic
yards of wastewater treatment plant (WWTP) sludge present in the Stolle
landfill. Today's action conditionally excludes the petitioned waste
from the
[[Page 16644]]
requirements of the hazardous waste regulations under the Resource
Conservation and Recovery Act (RCRA) only if the waste remains in place
or, if excavated, it is disposed of in a subtitle D landfill which is
permitted, licensed, or registered by a State to manage industrial
solid waste.
EFFECTIVE DATE: April 6, 1999.
ADDRESSES: The RCRA regulatory docket for this proposed rule is located
at the U.S. EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60604, and
is available for viewing from 8:00 a.m. to 4:00 p.m., Monday through
Friday, excluding Federal holidays. Call Peter Ramanauskas at (312)
886-7890 for appointments. The public may copy material from the
regulatory docket at $0.15 per page.
FOR FURTHER INFORMATION CONTACT: For technical information concerning
this document, contact Peter Ramanauskas at the address above or at
(312) 886-7890.
SUPPLEMENTARY INFORMATION:
I. Background
A. Authority
Under Secs. 260.20 and 260.22, facilities may petition the EPA to
remove their wastes from hazardous waste control by excluding them from
the lists of hazardous wastes contained in subpart D of part 261.
Specifically, Sec. 260.20 allows any person to petition the
Administrator to modify or revoke any provision of parts 260 through
266, 268 and 273, and under Sec. 260.22, which specifically provides
generators the opportunity to petition the Administrator to exclude a
waste on a ``generator-specific'' basis from the hazardous waste lists.
Petitioners 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, where there is 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, the
Administrator must determine that such factors do not warrant retaining
the waste as a hazardous waste.
B. History of This Rulemaking
Alcoa petitioned EPA to exclude its WWTP sludge from hazardous
waste control. After evaluating the petition, on December 21, 1998, EPA
proposed to exclude Alcoa's waste from the lists of hazardous wastes in
subpart D of part 261 (see 63 FR 70360). This rulemaking addresses the
public comments received on the proposal and finalizes the proposed
decision to grant Alcoa's petition.
II. Disposition of Delisting Petition
Aluminum Company of America, Alcoa Corporate Center, 201 Isabella
Street, Pittsburgh, Pennsylvania 15212-5858
A. Proposed Exclusion
Alcoa petitioned EPA to exclude the estimated total volume of
16,772 cubic yards of WWTP filter press sludge previously disposed of
in the Stolle landfill from the list of hazardous wastes contained in
Sec. 261.31 because it believed that the petitioned waste did not meet
any of the criteria under which the waste was listed and that there
were no additional constituents or factors that could cause the waste
to be hazardous. Subsequently, Alcoa provided additional information to
complete its petition. The WWTP filter cake sludge is listed as EPA
Hazardous Waste Numbers F006 and F019. The listed constituents of
concern for EPA Hazardous Waste Number F006 are cadmium, hexavalent
chromium, nickel and cyanide (complexed) and for EPA Hazardous Waste
Number F019 are hexavalent chromium and cyanide (complexed) (see
appendix VII of part 261).
In support of its petition, Alcoa submitted detailed descriptions
of its manufacturing and wastewater treatment processes, a schematic
diagram of the wastewater treatment process, and analytical testing
results for representative samples of the petitioned waste, including
(1) the hazardous characteristics of ignitability, corrosivity, and
reactivity; (2) total oil and grease; (3) Toxicity Characteristic
Leaching Procedure (TCLP, SW-846 Method 1311) analyses for volatile and
semi-volatile organic compounds, herbicides, pesticides,
polychlorinated biphenyls (PCBs), metals, fluoride, and cyanide (using
deionized water instead of acid); (4) total sulfide, total cyanide and
total fluoride; and (5) total constituent analysis for 40 CFR part 264,
appendix IX metals (plus hexavalent chromium for which F006 and F019
wastes are listed), VOCs, SVOCs, pesticides and herbicides, and PCBs.
EPA evaluated the information and analytical data provided by Alcoa
and tentatively determined that Alcoa had successfully demonstrated
that the petitioned waste is not hazardous. See the proposed exclusion
(63 FR 70360; December 21, 1998) for a detailed explanation of EPA's
evaluation.
B. Response to Comments
EPA received a public comment on the December 21, 1998 proposal
from Chemical Products Corporation.
Comment: Commenter noted the absence of any published revision of
the Toxicity Characteristic regulatory limit for barium, as the level
for barium in the proposed exclusion exceeds the regulatory limit for
barium in the Toxicity Characteristic (TC) Rule.
Response: The regulatory limit for barium under the TC rule has not
been changed. The level of regulatory concern in the proposed rule was
calculated using the EPA Composite Model for Landfills (EPACML). This
level for barium, although protective of human health and the
environment, has been lowered in today's final rule to comply with the
levels set by the toxicity characteristic in Sec. 261.24.
C. Changes to Proposed Conditions
In the proposed rulemaking, EPA included delisting levels for 12
constituents which would be protective of human health and the
environment and which could not be exceeded in a TCLP extract of the
petitioned waste. The proposed levels of 200 mg/l for barium and 10 mg/
l for chromium have been lowered to the hazardous waste TC levels of
100 mg/l for barium and 5 mg/l for chromium to ensure that the
petitioned waste, even though protective of human health and the
environment, remains below the TC levels.
Levels in the proposed rule were based on ``Docket Report on
Health-Based Levels and Solubilities Used in the Evaluation of
Delisting Petitions,'' December 1994. This document was revised in May,
1996, and the health based levels for copper and vanadium were changed
from 1.4 mg/l to 1.3 mg/l for copper and from 0.2 mg/l to 0.3 mg/l for
vanadium. These new values were multiplied by the dilution/attenuation
factor (DAF) generated using the EPACML to calculate the allowable
constituent concentration levels.
In today's final rule, the allowable constituent concentrations
measured in the TCLP extract may not exceed the following levels (mg/
l): Arsenic--5; Barium--100; Chromium--5; Cobalt--210; Copper--130;
Nickel--70; Vanadium--30; Zinc--1000; Fluoride--400; Acetone--400;
Methylene Chloride--0.5; Bis(2-ethylhexyl)phthalate--0.6.
D. Final Agency Decision
For the reasons stated in both the proposal and this document, EPA
has concluded that Alcoa's petitioned waste
[[Page 16645]]
may be excluded from hazardous waste control. EPA, therefore, is
granting a final exclusion for the WWTP sludge. This exclusion applies
to the waste described in the petition only if the requirements
described in Table 1 of part 261, appendix IX are satisfied.
Although management of the waste covered by this exclusion is
removed from subtitle C jurisdiction, this exclusion applies only if
the waste remains in place or, if excavated, is disposed of in a
subtitle D landfill which is permitted, licensed, or registered by a
state to manage industrial solid waste.
III. Limited Effect of Federal Exclusion
The final exclusion being granted today is issued under the Federal
(RCRA) delisting program. States, however, are allowed to impose (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 State. Because a petitioner's waste may be
regulated under a dual system (i.e., both Federal (RCRA) and State
(non-RCRA) programs), petitioners are urged to contact the State
regulatory authority to determine the current status of their waste
under State law.
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 does not apply in those
authorized States. If the petitioned waste will be transported to any
State with delisting authorization, Alcoa must obtain delisting
authorization from that State before the waste may be managed as
nonhazardous in the State.
IV. Effective Date
This rule is effective April 6, 1999. 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 reduces the existing requirements for
persons generating hazardous wastes. These reasons also provide a basis
for making this rule effective immediately, upon publication, under the
Administrative Procedure Act, 5 U.S.C. 553(d).
V. Regulatory Impact
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to 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.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
VI. Regulatory Flexibility 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 any impact on any small entities.
This rule 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. Accordingly, I hereby certify that this
regulation will not have a significant economic impact on a substantial
number of small entities. This regulation, therefore, does not require
a regulatory flexibility analysis.
VII. Paperwork Reduction Act
Information collection and recordkeeping requirements associated
with this final rule have been approved by 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.
VIII. 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 upon State, local or tribal
governments or the private sector. In addition, today's delisting
decision does not establish any regulatory requirements for small
governments and so does not require a small government agency plan
under UMRA section 203.
IX. 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. EPA is not required to submit a rule report regarding today's
action under section 801 because this is a rule of particular
applicability. Section 804 exempts from section 801 the
[[Page 16646]]
following types of rules: rules of particular applicability; rules
relating to agency management or personnel; and 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).
X. Executive Order 13045--Protection of Children From Environmental
Health Risks and Safety Risks
The E.O. 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 final
rule is not subject to E.O. 13045 because this is not an economically
significant regulatory action as defined by E.O. 12866.
XI. Executive Order 12875
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a state, local, or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If the mandate is unfunded, EPA must provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected state, local, and tribal
governments, the nature of their concerns, copies of written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, E.O. 12875 requires EPA to
develop an effective process permitting elected officials and other
representatives of state, local, and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.'' Today's rule does not
create a mandate on state, local or tribal governments. The rule does
not impose any enforceable duties on these entities. Accordingly, the
requirements of section 1(a) of E.O. 12875 do not apply to this rule.
XII. Executive Order 13084
Under E.O. 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, E.O. 13084 requires EPA to develop an
effective process permitting representatives of Indian tribal
governments ``to provide meaningful and timely input in the development
of regulatory policies on matters that significantly or uniquely affect
their communities.'' Today's rule does not significantly or uniquely
affect the communities of Indian tribal governments. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this rule.
XIII. The National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, 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 does not establish any new technical standards and
thus, the Agency has no need to consider the use of voluntary consensus
standards in developing this final rule.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, and Reporting
and recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: March 16, 1999.
Robert Springer,
Director, Waste, Pesticides and Toxics Division.
For the reasons set out in the preamble, 40 CFR part 261 is amended
as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for Part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
2. In Table 1 of Appendix IX of Part 261 add the following waste
stream in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Wastes Excluded Under Secs. 260.20 and
260.22
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Table 1.--Wastes Excluded From Non-Specific Sources
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Facility Address Waste description
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Aluminum Company of America... 750 Norcold Ave., Wastewater treatment
Sidney, Ohio plant (WWTP) sludges
45365. generated from the
chemical conversion
coating of aluminum
(EPA Hazardous Waste
No. F019) and WWTP
sludges generated
from electroplating
operations (EPA
Hazardous Waste No.
F006) and stored in
an on-site landfill.
This is an exclusion
for approximately
16,772 cubic yards
of landfilled WWTP
filter cake. This
exclusion applies
only if the waste
filter cake remains
in place or, if
excavated, is
disposed of in a
Subtitle D landfill
which is permitted,
licensed, or
registered by a
state to manage
industrial solid
waste. This
exclusion was
published on April
6, 1999.
1. The constituent
concentrations
measured in the TCLP
extract may not
exceed the following
levels (mg/L):
Arsenic--5; Barium--
100; Chromium--5;
Cobalt--210; Copper--
130; Nickel--70;
Vanadium--30; Zinc--
1000; Fluoride--400;
Acetone--400;
Methylene Chloride--
0.5; Bis(2-
ethylhexyl)phthalate
-0.6.
2. (a) If, anytime
after disposal of
the delisted waste,
Alcoa 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 in
Condition (1) is at
a level in the
leachate higher than
the delisting level
established in
Condition (1), or is
at a level in the
ground water or soil
higher than the
health based level,
then Alcoa must
report such data, in
writing, to the
Regional
Administrator within
10 days of first
possessing or being
made aware of that
data.
(b) Based on the
information
described in
paragraph (a) and
any other
information received
from any source, the
Regional
Administrator will
make a preliminary
determination as to
whether the reported
information requires
Agency action to
protect human health
or the environment.
Further action may
include suspending
or revoking this
exclusion, or other
appropriate response
necessary to protect
human health and the
environment.
(c) If the Regional
Administrator
determines that the
reported information
does require Agency
action, the Regional
Administrator will
notify the facility
in writing of the
actions the Regional
Administrator
believes are
necessary to protect
human health and the
environment. The
notice shall include
a statement of the
proposed action and
a statement
providing the
facility with an
opportunity to
present information
as to why the
proposed Agency
action is not
necessary or to
suggest an
alternative action.
The facility shall
have 10 days from
the date of the
Regional
Administrator's
notice to present
such information.
(d) Following the
receipt of
information from the
facility described
in paragraph (c) or
(if no information
is presented under
paragraph (c) the
initial receipt of
information
described in
paragraph (a), the
Regional
Administrator will
issue a final
written
determination
describing the
Agency actions that
are necessary to
protect human health
or the environment.
Any required action
described in the
Regional
Administrator's
determination shall
become effective
immediately, unless
the Regional
Administrator
provides otherwise.
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[FR Doc. 99-8480 Filed 4-5-99; 8:45 am]
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