[Federal Register Volume 65, Number 234 (Tuesday, December 5, 2000)]
[Proposed Rules]
[Pages 75897-75906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29647]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-6904-3]
Hazardous Waste Management System; Proposed Exclusion for
Identification and Listing Hazardous Waste
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule and request for comment.
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SUMMARY: The EPA (also, ``the Agency'' or ``we'' in this preamble) is
proposing to grant a petition submitted by Heritage Environmental
Services, LLC (Heritage) to exclude (or ``delist'') treated Electric
Arc Furnace Dust (EAFD) produced at Nucor Steel, Division of Nucor
Corporation (Nucor) located in Crawfordsville, Indiana from the lists
of hazardous wastes contained in Subpart D of Part 261.
The Agency has tentatively decided to grant the exclusion based on
an evaluation of waste-specific information provided by Heritage. This
proposed decision, if finalized, conditionally excludes the petitioned
waste from the requirements of hazardous waste regulations under the
Resource Conservation and Recovery Act (RCRA).
We conclude that Heritage's petitioned waste is nonhazardous with
respect to the original listing criteria.
DATES: Comments. We will accept public comments on this proposed
decision until January 19, 2000. We will
[[Page 75898]]
stamp comments postmarked after the close of the comment period as
``late.'' These ``late'' comments may not be considered in formulating
a final decision.
Request for Public Hearing. Your request for a hearing must reach
EPA by December 20, 2000. The request must contain the information
prescribed in Sec. 260.20(d).
ADDRESSES: Comments. Please send two copies of your comments to Todd
Ramaly, Waste Management Branch (DW-8J), Environmental Protection
Agency, 77 W. Jackson Blvd., Chicago, IL, 60604.
Request for Public Hearing. Any person may request a hearing on
this proposed decision by filing a request with Robert Springer,
Director, Waste, Pesticides and Toxics Division (D-8J), Environmental
Protection Agency, 77 W. Jackson Blvd., Chicago, IL, 60604.
Docket. 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 a.m. to 4 p.m., Monday
through Friday, excluding federal holidays. Call Todd Ramaly at (312)
353-9317 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 Todd Ramaly at the address above or at 312-353-
9317.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What action is EPA proposing?
B. Why is EPA proposing to approve this delisting?
C. How will Heritage manage the waste if it is delisted?
D. When would EPA finalize the proposed delisting exclusion?
E. How would this action affect States?
II. Background
A. What is the history of the delisting program?
B. What is a delisting petition, and what does it require of a
petitioner?
C. What factors must EPA consider in deciding whether to grant a
delisting petition?
III. EPA's Evaluation of the Waste Information and Data
A. What waste did Heritage petition EPA to delist?
B. What information and analyses did Heritage submit to support
this petition?
C. How does Heritage generate the petitioned waste?
D. How did Heritage sample and analyze the data in this
petition?
E. What were the results of Heritage's analysis?
F. How did EPA evaluate the risk of delisting this waste?
G. What other factors did EPA consider in its evaluation?
H. What did EPA conclude about Heritage's analysis?
I. What is EPA's final evaluation of this delisting petition?
IV. Conditions for Exclusion
A. What are the maximum allowable concentrations of hazardous
constituents in the waste?
B. How frequently must Heritage test the waste?
C. What must Heritage do if the process changes?
D. What data must Heritage submit?
E. What happens if Heritage's waste fails to meet the conditions
of the exclusion?
V. Regulatory Impact
VI. Regulatory Flexibility Act
VII. Paperwork Reduction Act
VIII. Unfunded Mandates Reform Act
IX. Executive Order 12875
X. Executive Order 13045
XI. Executive Order 13084
XII. National Technology Transfer And Advancement Act
I. Overview Information
A. What Action Is EPA Proposing?
The EPA is proposing to grant Heritage's petition to have treated
EAFD from the production of steel at Nucor excluded, or delisted, from
the definition of a hazardous waste. Heritage petitioned EPA to
exclude, or delist, the EAFD because Heritage believes that the
petitioned waste does not meet the RCRA criteria for which EPA
originally listed the waste. Heritage also believes there are no
additional constituents or factors which could cause the waste to be
hazardous.
Based on our review described below, we agree with the petitioner
that the waste is nonhazardous with respect to the original listing
criteria. Furthermore, EPA finds no additional constituents or factors
which would cause the waste to be hazardous. If our review had found
that the waste remained hazardous based on the factors for which we
originally listed the waste, we would have proposed to deny the
petition.
B. Why Is EPA Proposing To Approve This Delisting?
We believe that the petitioned waste does not meet the criteria for
which the waste was originally listed and does not contain other
constituents at levels which would cause it to be hazardous, and
therefore, should be delisted. Our tentative decision to delist waste
treated by Heritage at Nucor's Crawfordsville facility is based on the
description of the process which generates the waste and the analytical
data submitted to support today's proposed rule.
In reviewing this petition, we considered the original listing
criteria and the additional factors required by the Hazardous and Solid
Waste Amendments of 1984 (HSWA). See 222 of HSWA, 42 U.S.C. 6921(f),
and 40 CFR Part 260.22 (d)(2) through (4). We evaluated the petitioned
waste against the listing criteria and factors cited in
Secs. 261.11(a)(2) and (3).
We also evaluated the waste for other factors or criteria which
could cause the waste to be hazardous. These factors included: (1)
Whether the waste is considered acutely toxic; (2) the toxicity of the
constituents; (3) the concentration of the constituents in the waste;
(4) the tendency of the hazardous constituents to migrate and to
bioaccumulate; (5) persistence of the constituents in the environment
once released from the waste; (6) plausible and specific types of
management of the petitioned waste; (7) the quantity of waste produced;
and (8) waste variability.
C. How Will Heritage Manage the Waste If It Is Delisted?
If the petitioned waste is delisted, Heritage must dispose of it in
a Subtitle D landfill licensed or permitted by a State to manage
industrial waste. Heritage may also dispose of the delisted waste in a
permitted Subtitle C landfill.
D. When Would EPA Finalize the Proposed Delisting Exclusion?
HSWA specifically requires the EPA to provide notice and an
opportunity for comment before granting or denying a final exclusion.
Thus, EPA will not make a final decision or grant an exclusion until it
has addressed all timely public comments (including any at public
hearings,) on today's proposal.
Since this rule would reduce the existing requirements for a person
generating hazardous wastes, the regulated community does not need a
six-month period to come into compliance in accordance with Section
3010 of RCRA as amended by HSWA. Therefore, the exclusion would become
effective upon finalization.
E. How Would This Action Affect the States?
Because EPA is issuing today's exclusion under the federal RCRA
delisting program, only states subject to federal RCRA delisting
provisions would be affected. This exclusion may not be effective in
states having a dual system that includes federal RCRA requirements and
their own requirements, or in states which have received our
authorization to make their own delisting decisions.
EPA allows states to impose their own non-RCRA regulatory
requirements that are more stringent than EPA's, under
[[Page 75899]]
section 3009 of RCRA. These more stringent requirements may include a
provision that prohibits a federally issued exclusion from taking
effect in the state. Because a dual system (that is, both federal
(RCRA) and state (non-RCRA) programs) may regulate a petitioner's
waste, we urge the petitioners to contact the state regulatory
authority to establish the status of their waste under the state law.
EPA has also authorized some states to administer a delisting
program in place of the federal program, that is, to make state
delisting decisions. Therefore, this exclusion does not apply in those
authorized states. If Heritage transports the petitioned waste to or
manages the waste in any state with delisting authorization, Heritage
must obtain delisting authorization from that state before it can
manage the waste as nonhazardous in the state.
II. Background
A. What Is the History of the Delisting Program?
The EPA published an amended list of hazardous wastes from
nonspecific and specific sources on January 16, 1981, as part of its
final and interim final regulations implementing Section 3001 of RCRA.
The EPA has amended this list several times and published it in 40 CFR
261.31 and 261.32.
We list these wastes as hazardous because: (1) They typically and
frequently exhibit one or more of the characteristics of hazardous
wastes identified in Subpart C of Part 261 (that is, ignitability,
corrosivity, reactivity, and toxicity) or (2) they meet the criteria
for listing contained in Secs. 261.11(a)(2) or (3).
Individual waste streams may vary depending on raw materials,
industrial processes, and other factors. Thus, while a waste described
in these regulations generally is hazardous, a specific waste from an
individual facility that meets the listing description may not be.
For this reason, 40 CFR 260.20 and 260.22 provide an exclusion
procedure, called delisting, which allows a person to demonstrate that
EPA should not regulate a specific waste from a particular generating
facility as a hazardous waste.
B. What Is a Delisting Petition, and What Does It Require of a
Petitioner?
A delisting petition is a request from a facility to EPA or an
authorized state to exclude wastes from the list of hazardous wastes.
In a delisting petition, the petitioner must show that the waste
generated at a particular facility do not meet any of the criteria for
listed wastes. The criteria for which EPA lists a waste are in 40 CFR
261.11 and in the background documents for the listed wastes.
In addition, a petitioner must demonstrate that the waste does not
exhibit any of the hazardous waste characteristics and must present
sufficient information for us to decide whether factors other than
those for which the waste was listed warrant retaining it as a
hazardous waste. (See Sec. 260.22, 42 U.S.C. 6921(f) and the background
documents for a listed waste.)
A generator remains obligated under RCRA to confirm that its waste
remains nonhazardous.
C. What Factors Must EPA Consider in Deciding Whether To Grant a
Delisting Petition?
Besides considering the criteria in 40 CFR 260.22(a), 42 U.S.C.
6921(f), and in the background documents for the listed wastes, EPA
must consider any factors (including additional constituents) other
than those for which we listed the waste if these additional factors
could cause the waste to be hazardous. (See The Hazardous and Solid
Waste Amendments (HSWA) of 1984.)
EPA must also consider as a hazardous waste, mixtures containing
listed hazardous wastes and wastes derived from treatment of listed
hazardous waste. See 40 CFR 261.3(a)(2)(iv) and (c)(2)(i), called the
``mixture'' and ``derived-from'' rules, respectively. These wastes are
also eligible for exclusion but remain hazardous wastes until excluded.
III. EPA's Evaluation of the Waste Information and Data
A. What Wastes Did Heritage Petition EPA To Delist?
August 3, 1999, Heritage petitioned EPA to exclude an annual volume
of 30,000 cubic yards of K061 EAFD generated at Nucor Steel Corporation
located in Crawfordsville, Indiana from the list of hazardous wastes
contained in 40 CFR 261.32. K061 is defined as ``emission control dust/
sludge from the primary production of steel in electric arc furnaces.''
The EPA reviews a petitioner's estimated volume and, on occasion, has
requested a petitioner to re-evaluate the estimated waste generation
rate. EPA accepts Heritage's estimate of annual volume of waste.
B. What Information and Analyses Did Heritage Submit To Support This
Petition?
To support its petition, Heritage submitted (1) descriptions and
schematic diagrams of the EAFD treatment system; (2) analyses for
antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury,
nickel, selenium, silver, thallium, vanadium, and zinc (a) for total
concentration, (b) by the Toxicity Characteristic Leaching Procedure
(TCLP), SW-846 Method 1311, (c) by the Multiple Extraction Procedure
(MEP), SW-846 Method 1312, and (d) using the TCLP and MEP procedures
while substituting neutral and basic extraction fluids for the acidic
extraction fluids specified in the method; (3) total constituent
analyses for sulfide, and cyanide; (4) total constituent analyses for
semivolatile organic compounds (SVOCs); (5) total constituent analyses
for volatile organic compounds (VOCs); (6) total polychlorinated
biphenyls (PCBs); and (7) total oil & grease.
C. How Is the Petitioned Waste Generated?
The treated EAFD proposed for exclusion has been generated at Nucor
since the facility began steel manufacturing in 1989. Carbon and
stainless steel are manufactured from scrap metal using two electric
arc furnaces. The exhaust from the furnaces is conveyed via a capture
system designed to capture emissions from the furnaces and the
associated building. Larger particles are removed in a dropout chamber
while the capture system conveys the smaller particles for capture in
air pollution control devices (i.e., baghouses). EAFD captured in the
baghouses is conveyed by a screw conveyor system to two aboveground,
cone bottom silos that accumulate the dust prior to introduction into
the treatment process. The EAFD is conveyed from the accumulation silos
either by screw conveyor or by gravity, to the treatment equipment.
The computer controlled treatment system weighs a predetermined
amount of EAFD into a mixing device. Treatment reagents are added
proportionally in sequential manner to the mixing device. The mixing
device thoroughly blends the EAFD and the treatment reagents in precise
amounts based on certain dust characteristics. Once the mixing
operation is completed, the waste is conveyed to a dump truck for
transportation to a landfill.
D. How Did Heritage Sample and Analyze the Data in This Petition?
In consultation with EPA Region 5, Heritage developed a list of
analytical constituents based on a review of the EAFD and the treatment
process. Three
[[Page 75900]]
randomly collected composite samples of treated carbon steel EAFD were
collected for testing each week over a four week period for a total of
twelve samples during an initial round of sampling. Each composite
sample was comprised of four grab samples that were collected
immediately after loading from a roll-off box containing treated EAFD.
Heritage conducted a second round of random sampling over a four week
period similar to the first round with the exception of stainless
steel. A total of eight samples were collected during the second round
of sampling and analysis. Treated stainless steel samples were
collected on two days when the facility was generating EAFD from
stainless steel production. Treated stainless steel samples were
randomly collected during the two days of stainless steel production.
To quantify the total constituent and extraction fluid
concentrations, Heritage used the following SW-846 Methods: 7041/6010
for antimony; 6010B for arsenic, barium, beryllium, cadmium, chromium,
lead, nickel, selenium, silver, thallium, vanadium, and zinc; 7470 for
mercury; 9012 for total cyanide; 9034 for total sulfide; 8082 for PCBs;
8260 for volatile organic compounds, 8270 for semivolatile organic
compounds, and 413.1 for Oil & Grease.
During the initial round of sampling and analysis, Heritage
demonstrated that the treated EAFD was stable when using the TCLP.
During the second round of sampling and analysis, Heritage demonstrated
that the treated EAFD is stable over a range of pH values (acidic,
neutral, and basic). In addition to the TCLP, Heritage analyzed the
second round of samples using a modified TCLP procedure, in which the
prescribed TCLP extraction fluid was substituted with (1) a neutral
extraction fluid of reagent water (ASTM Type II water) adjusted to pH
6.5 0.05 using 1 N NaOH and (2) a basic extraction fluid
consisting of reagent water to which high calcium hydrated lime was
added to reach a pH of 12.0 0.05. Heritage removed
dissolved oxygen from both the neutral and basic extraction fluids to
less than 0.5 ppm by the addition of a stoichiometric amount of sodium
hydrosulfite. Heritage believes it is appropriate to test stabilized
waste using an oxygen depleted extraction fluid because it believes
that the environment of a solid waste landfill is anaerobic or oxygen
depleted. Furthermore, to more closely simulate the anaerobic
environment of the landfill, Heritage performed the extraction
procedure with zero headspace in the extraction vessel and performed
the filtration step under a nitrogen blanket. Heritage submitted
documentation to U.S. EPA supporting Heritage's belief that solid waste
landfills are oxygen depleted. Heritage also submitted a summary of
dissolved oxygen data for leachate from their two landfills in support
of their assertion that the landfill environment is anaerobic. Heritage
believes that the oxygen depleted environment of the buried waste in
combination with appropriate stabilization reagents inhibits the
mobilization of metallic species.
Heritage analyzed four samples following the Multiple Extraction
Procedure (MEP), SW 846 method 1320, but substituting the TCLP
procedure, Method 1311 for the EP Tox test, Method 1310. Heritage also
analyzed four additional samples following the MEP method, but using a
neutral extraction fluid for all ten extractions.
E. What Were the Results of Heritage's Analysis?
Table 1 presents the maximum total and leachate concentrations for
14 metals, total cyanide, and total sulfide. The concentrations of
metals in the extract are the maximum obtained in any of the three
extraction fluids (acidic, neutral, and basic).
Heritage analyzed one sample of petitioned waste for 57 volatile
organic compounds, 72 semi-volatile organic compounds, and eight
Arochlor mixtures of PCBs. There were no detections of these organic
constituents in the treated EAFD samples. EPA does not generally verify
submitted test data before proposing delisting decisions. The sworn
affidavit submitted with the petition binds the petitioner to present
truthful and accurate results. Heritage submitted a signed
Certification of Accuracy and Responsibility statement presented in 40
CFR 260.22(i)(12).
F. How Did EPA Evaluate the Risk of Delisting This Waste?
For this delisting determination, we used information gathered to
identify plausible exposure routes (i.e., ground water, surface water,
air) for hazardous constituents present in the petitioned waste. We
used a fate and transport model to predict the release of hazardous
constituents from the petitioned waste once it is disposed to evaluate
the potential impact of the petitioned waste on human health and the
environment. To accomplish this, we used a Windows based software tool,
the Delisting Risk Assessment Software Program (DRAS), to estimate the
potential releases of waste constituents and to predict the risk
associated with those releases using several EPA models including the
EPACMTP (EPA's Composite Model for leachate migration with
Transformation Products) fate and transport model for groundwater
releases. For a detailed description of the DRAS program and the
EPACMTP model, see 65 FR 58015, September 27, 2000. A technical support
document for the DRAS program is available in the public docket.
Revisions have been made to the DRAS program in order to improve
the modeling which are being implemented for the first time in a draft
exclusion. Specifically, the groundwater inhalation pathway was revised
to reflect recent advances in modeling household inhalation from home
water use (e.g., showering). The basis for estimating the concentration
of constituents in the indoor air is based on the mass transfer of
constituent from water to shower air. The initial version of DRAS used
a fate and transport model described in T.E. McKone and K.T. Bogen's
1992 Uncertainties in Health-Risk Assessment: An Integrated Case Study
Based on Tetrachloroethylene in California Groundwater, Regulatory
Toxicology and Pharmacology, 15: 86-103, which predicted the highest
waste concentration emitted from the water into the air during a given
water use period (e.g., 10-minute shower). This method was revised to
more accurately predict the average concentration occurring during the
exposure event.
The revised model used in this analysis is based on the equations
presented in T.E. McKone's 1987 Human Exposure to Volatile Organic
Compounds in Household Tap Water: The Indoor Inhalation Pathway,
Environmental Science and Technology, 21(12): 1194-1201. The shower
model estimates the change in the shower (or bathroom or household) air
concentration based on the mass of constituent lost by the water
(fraction emitted or emission rate) and the air exchange rate between
the various model compartments (shower, the rest of the bathroom, and
the rest of the house). The resulting differential equations were
solved using finite difference numerical integration. The average air
concentration in the shower and bathroom are obtained by averaging the
concentrations obtained for each time step over the duration of the
exposure event (shower and bathroom use). These concentrations and the
durations of daily exposure are used to estimate risk from inhalation
exposures to residential use of groundwater. Further, improvements were
made to more accurately reflect the transfer efficiency of the waste
constituent from
[[Page 75901]]
the groundwater to the air compartment. The fraction emitted from the
bathroom or household water use is a function of the input transfer
efficiency (or maximum fraction emitted) and the driving force for mass
transfer (the differential between air saturation concentration at air/
water interface and bulk air concentration). For example, in the shower
compartment, the constituent emission rate is estimated from the change
in the shower water concentration as the water falls through the air.
The shower emissions can be modeled based on falling droplets as a
means of estimating the surface-area-to-volume ratio for mass transfer
and the residence time of the water in the shower compartment, assuming
the constituent concentration in the gas phase is constant over the
time frame of the droplet fall. By assuming the drops fall at terminal
velocity, the surface-area-to-volume ratio and the residence time can
be determined based solely on droplet size. A droplet size of
approximately 1 mm (0.1 cm) was selected. The terminal velocity for the
selected droplet size is approximately 400 cm/s. The fraction of
constituent emitted from a water droplet at any given time can then be
calculated.
The equations used to predict surface volatilization from a
landfill have been modified to more accurately reflect true waste
concentration releases. The previous version of DRAS used Farmer's
equation to estimate the emission rate of volatiles from the surface of
the landfill. Farmer's equation assumes that the emission originates as
volatiles in liquids trapped in the pore spaces between solid particles
of waste. The volatiles evaporate from the liquid and are emitted from
the landfill following gaseous diffusion through the solid waste
particles and soil cover to the surface of the landfill. Farmer's
equation requires the mole fraction of a given volatile constituent in
the liquid in order to calculate the emission. The previous version of
DRAS used the TCLP value of a volatile constituent in the waste to
approximate the mole fraction of a given constituent in the pore
liquid. Since the TCLP test includes a 20-fold dilution, the
calculation might underestimate the available concentration of
volatiles in freshly deposited waste. The DRAS has been revised to use
Shen's modification of Farmer's equation, described in U.S. EPA Office
of Air Quality Planning and Standards' 1984 Evaluation and Selection of
Models for Estimating Air Emissions from Hazardous Waste Treatment,
Storage, and Disposal Facilities, EPA-450/3-84-020. Shen took the
simplified version of Farmer's equation for vapor flux from a soil
surface and converted it to an emission rate by multiplying it by the
exposed landfill area. Shen's modification uses the total waste
constituent concentration (weight fraction in the bulk waste) to
approximate the mole fraction of that constituent in the liquid phase.
In estimating the amount of a given waste constituent that is
released to surface water and eventually becomes freely dissolved in
the water column, previous delisting petitions and the earlier version
of the DRAS used the maximum observed TCLP concentration in waste as
the total amount of the waste constituent available for erosion.
Further, the former method assumed that all of the constituent mass
that reached the stream, based on TCLP, became dissolved in the aqueous
phase. Assuming complete conversion to a dissolved state is overly
conservative and not in agreement with recent Agency methodology. In
the revised DRAS, the total waste constituent concentration is used to
estimate the constituent mass that reaches the stream. The portion of
the waste constituent that becomes freely dissolved is determined by an
estimate of partitioning between suspended solids and the aqueous
phase. This methodology is described in U.S. EPA's 1998 Human Health
Risk Assessment Protocol for Hazardous Waste Combustion Facilities,
Volume One. Peer Review Draft, EPA530-D-98-001A.
Recent developments in mercury partitioning described in the
Mercury Report to Congress, Volume III: Fate and Transport of Mercury
in the Environment, EPA-452/R-97-005, led to another revision to the
surface water pathway. The DRAS was modified to account for
bioaccumulation of methyl mercury as a result of the release of mercury
into the surface water column. The primary human health hazard posed by
the release of mercury into surface water is through bioaccumulation of
methyl mercury in fish followed by human consumption of the
contaminated fish. Biological processes in surface water cause the
conversion, or methylation, of elemental mercury to methyl mercury. In
accordance with the Human Health Risk Assessment Protocol for Hazardous
Waste Combustion Facilities, Volume One. Peer Review Draft, 15% of
mercury in the water column is assumed to be converted to methyl
mercury. This fraction is then used, along with the current
bioaccummulation factor, to determine the predicted concentration of
methyl mercury in fish tissue.
The maximum allowable leachate concentrations and the point of
exposure (POE) concentrations of concern in groundwater are also
presented in Table 1. For inorganic constituents, the maximum reported
leachate concentrations for metals in the treated EAFD were well below
the health-based levels of concern used in decision-making for
delisting. No organic constituents were detected. We believe that it is
inappropriate to evaluate non-detectable concentrations of a
constituent of concern in our modeling efforts if the non-detectable
value was obtained using the appropriate analytical method. For
constituents which are not detected in the extract but are detected as
a total concentration, the DRAS model requires that the detection level
be entered along with the other data. For these constituents, the DRAS
uses one-half of the detection level to calculate risk.
G. What Other Factors Did EPA Consider in Its Evaluation?
We also considered the applicability of ground-water monitoring
data during the evaluation of delisting petitions. In this case, we
determined that it would be inappropriate to request ground-water
monitoring data because the waste is currently disposed off-site. For a
petitioner using off-site management, EPA believes that, in most cases,
the ground water monitoring data would not be meaningful. Most
commercial land disposal facilities accept waste from numerous
generators. Any ground water contamination or leachate would be
characteristic of the total volume of waste disposed of at the site. In
most cases, EPA believes that it would be impossible to isolate ground
water impacts associated with any one waste disposed of in a commercial
landfill. Therefore, we did not request ground water monitoring data
from Heritage. Potential impacts of the petitioned waste via air
emission and storm water run-off are also addressed in the DRAS.
H. What Did EPA Conclude About Heritage's Analysis?
After reviewing Heritage's petition, the EPA concludes that (1) no
hazardous constituents are likely to be present above health based
levels of concern in the waste generated at Nucor Steel; and (2) the
petitioned waste does not exhibit any of the characteristics of
ignitability, corrosivity, reactivity, or toxicity. See 40 CFR 261.21,
261.22, 261.23, and 261.24, respectively.
The total cumulative risk posed by the waste is approximately
1.6 x 10 -5. Although this value exceeds the Region 5
Delisting Program's target risk level of
[[Page 75902]]
1 x 10 -6 for delisting hazardous waste, EPA believes that
this risk is acceptable because the estimated risk is almost entirely
associated with a single contaminant/pathway which may be evaluated in
more than one way. Furthermore, EPA has considered cancer risks in the
range of 1 x 10 -4 to 1 x 10 -6 to be acceptable
in other programs and the Region 5 Delisting Program has considered
risks in this range acceptable if there are reasons to do so.
In this case, exposure to carcinogenic arsenic through ingestion of
contaminated drinking water accounted for almost all of the risk
estimated from disposal of the petitioned waste at a Subtitle D
landfill. If the POE target concentration was set at the Safe Drinking
Water Act (SDWA) Maximum Contaminant Level (MCL), the maximum allowable
waste leachate concentration would be 0.96 mg/L TCLP arsenic, over 60
times higher than the maximum observed leachate concentration in the
waste. EPA's July 1996 Soil Screening Guidance: User's Guide, EPA/540/
R-96/018, states that acceptable levels of contaminants in soils for
the ground-water pathway could be derived from SDWA Maximum Contaminant
Level Goals or MCLs. Given that the difference between the MCL for
arsenic and the health-based POE concentration is three orders of
magnitude and that, according to EPA's May 2000 Technical Fact Sheet:
Proposed Rule for Arsenic in Drinking Water and Clarifications to
Compliance and New Source Contaminants Monitoring, EPA 815-F-00-011,
naturally occurring levels of arsenic are often higher than these
levels, we believe that some allowance can be exercised in setting the
allowable level for arsenic in the leachate. EPA proposes to set the
allowable arsenic leachate level at a concentration which corresponds
to a total waste cancer risk of 1 x 10 -4 (which is still
within the generally acceptable range of 1Qtimes10 -4 to
x 10 -6). Delisting levels for constituents other than
arsenic will still be set at concentrations corresponding to the
original Region 5 target of 1 x 10 -6. By this method, the
delisting level for leachable arsenic in this proposed exclusion will
be set at a value which corresponds to a POE concentration of
approximately one-tenth of the existing MCL. The EPA has recently
proposed to lower the arsenic MCL to one-tenth its current value and
thus, if finalized, it would correspond well with the delisting level
we are setting.
The aggregate hazard index for this waste is estimated to be 0.965,
which does not exceed the EPA Region 5 Delisting Program's target of
1.0. The majority of this aggregate hazard index, 0.774, occurs as a
result of migration of mercury to surface water followed by ingestion
of fish by humans. For this reason, a delisting level for total mercury
in the waste will also be imposed. All other delisting levels imposed
in this exclusion are based on the concentration of constituents in
leachate.
I. What Is EPA's Final Evaluation of This Delisting Petition?
We have reviewed the sampling procedures used by Heritage and have
determined they satisfy EPA criteria for collecting representative
samples of the treated EAFD. The descriptions of the hazardous waste
treatment process and the analytical data, together with the proposed
verification testing requirements, provide a reasonable basis for EPA
to grant the exclusion. We believe the data submitted in support of the
petition show that the waste will not pose a threat when disposed of in
a Subtitle D landfill. We therefore, propose to grant Heritage an
exclusion for the EAFD generated at Nucor.
If we finalize this proposed exclusion, the Agency will no longer
regulate the petitioned waste under 40 CFR Parts 262 through 268 and
the permitting standards of Part 270.
IV. Conditions for Exclusion
A. What Are the Maximum Allowable Concentrations of Hazardous
Constituents in the Waste?
The following table summarizes delisting levels for Nucor's waste.
The EPA calculated maximum allowable concentrations in the extract for
detected constituents using the DRAS program. The allowable leachate
concentrations were derived either from the health-based calculation
within the DRAS program, from MCLs, treatment technique (TT), or
toxicity characteristic values, whichever resulted in a lower delisting
level, with the exception of arsenic as discussed in Section III. H. of
this preamble. In addition, the concentration of total mercury in the
waste shall not exceed 1 mg/kg.
Table 1.--Constituent Concentrations and DRAS Maximum Allowable Leachate and Point of Exposure Levels
----------------------------------------------------------------------------------------------------------------
Maximum
Maximum \1\ Maximum \1\ Maximum Allowable
Observed Observed Allowable Point of
Constituent Total Leachate Leachate Exposure
Concentration Concentration Concentration Concentration
(mg/kg) (mg/L TCLP) (mg/L TCLP) (mg/L in
groundwater)
----------------------------------------------------------------------------------------------------------------
Antimony........................................ 25 0.0082 \2\ 0.206 \2\ 0.006
Arsenic......................................... 30 0.015 0.0936 0.005
Barium.......................................... 56 0.83 \2\ 55.7 \2\ 2.0
Beryllium....................................... 10 0.002 \2\ 0.416 \2\ 0.004
Cadmium......................................... 130 0.001 \2\ 0.15 \2\ 0.005
Chromium........................................ 2,880 0.11 \2\ 1.55 \2\ 0.1
Lead............................................ 4,600 2.4 \3\ 5 \2\ 0.015
Mercury......................................... 0.72 0.002 \2\ 0.149 \2\ 0.002
Nickel.......................................... 130 0.020 28.3 0.753
Selenium........................................ 8.8 0.056 \2\ 0.58 \2\ 0.05
Silver.......................................... 47 0.023 3.84 0.187
Thallium........................................ 30 0.05 \2\ 0.088 \2\ 0.002
Vanadium........................................ 160 0.01 21.1 0.263
Zinc............................................ 240,000 2.7 280 11.25
Cyanide......................................... 0.23 NR NA \2\ 0.2
[[Page 75903]]
Sulfide......................................... 31 NR NA NA
----------------------------------------------------------------------------------------------------------------
\1\ These levels represent the highest constituent concentration found in any sample and are not necessarily the
specific levels found in any one sample.
\2\ The concentration is based on the MCL or TT action level.
\3\ The concentration is based on the toxicity characteristic level in 40 CFR 261.24.
The constituent was not detected at the stated concentration.
NA Not applicable
NR Analysis not run.
B. How Frequently Must Heritage Test the Waste?
Heritage must demonstrate on a monthly basis that the constituents
of concern in the petitioned waste do not exceed the levels of concern
in section IV.A. above. Heritage must collect two representative
samples of the treated EAFD per month and analyze the samples using a)
the TCLP method, b) the TCLP procedure with an extraction fluid of pH
12 0.05 standard units and c) SW-846 Method 7470 for
mercury. The alkaline extraction fluid will consist of reagent water to
which high calcium hydrated lime is added to reach a pH of 12.0
0.05. Appropriate detection levels and quality control
procedures are required.
C. What Must Heritage Do if the Process Changes?
If Nucor significantly changes the manufacturing process or
Heritage significantly changes the treatment process or the chemicals
used in the treatment process, Heritage may not handle the EAFD
generated from the new process under this exclusion until it has
demonstrated to the EPA that the waste meets the levels set in Section
IV.A and that no new hazardous constituents listed in Appendix VIII of
40 CFR Part 261 have been introduced. Heritage must manage wastes
generated after the process change as hazardous waste until Heritage
has received written approval from EPA.
D. What Data Must Heritage Submit?
Heritage must submit an annual summary of the data obtained through
monthly verification testing to U.S. EPA Region 5, Waste Management
Branch (DW-8J), 77 W. Jackson Blvd., Chicago, IL 60604, by February 1
of each year for the prior calendar year. Heritage must compile,
summarize, and maintain on site for a minimum of five years records of
operating conditions and analytical data. Heritage must make these
records available for inspection. All data must be accompanied by a
signed copy of the certification statement in 40 CFR 260.22(i)(12).
E. What Happens if Heritage Fails To Meet the Conditions of the
Exclusion?
If Heritage violates the terms and conditions established in the
exclusion, the Agency may start procedures to withdraw the exclusion.
If the monthly testing of the waste does not meet the delisting
levels described in Section IV.A above, Heritage must notify the Agency
according to Section IV.D. The exclusion will be suspended and the
waste managed as hazardous until Heritage has received written approval
for the exclusion from the Agency. Heritage may provide sampling
results that support the continuation of the delisting exclusion.
The EPA has the authority under RCRA and the Administrative
Procedures Act, 5 U.S.C. 551 (1978) et seq. (APA), to reopen a
delisting decision if we receive new information indicating that the
conditions of this exclusion have been violated.
V. Regulatory Impact
Under Executive Order 12866, EPA must conduct an ``assessment of
the potential costs and benefits'' for all ``significant'' regulatory
actions.
The proposal to grant an exclusion is not significant, since its
effect, if promulgated, would be to reduce the overall costs and
economic impact of EPA's hazardous waste management regulations. This
reduction would be achieved by excluding waste generated at a specific
facility from EPA's lists of hazardous wastes, thus enabling a facility
to manage its waste as nonhazardous.
Because there is no additional impact from today's proposed rule,
this proposal would not be a significant regulation, and no cost/
benefit assessment is required. The Office of Management and Budget
(OMB) has also exempted this rule from the requirement for OMB review
under Section (6) of Executive Order 12866.
VI. Regulatory Flexibility Act
Under 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 which describes the impact of
the rule on small entities (that is, 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 small entities.
This rule, if promulgated, will not have an adverse economic impact
on 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, the Agency certifies that this proposed
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.
VII. 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 (Pub. L. 96-511, 44 U.S.C. 3501 et seq.) and have been assigned
OMB Control Number 2050-0053.
[[Page 75904]]
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, EPA 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.
The 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 proposed
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. Executive Order 12875
Under Executive Order 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, Executive Order 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 Executive
Order 12875 do not apply to this rule.
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
proposed 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
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly affects or uniquely affects
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. This
action does not involve or impose any requirements that affect Indian
Tribes. Accordingly, the requirements of section 3(b) of Executive
Order 13084 do not apply to this rule.
XII. National Technology Transfer and Advancement Act
Under Section 12(d) of the National Technology Transfer and
Advancement Act, the Agency is directed to use voluntary consensus
standards in its regulatory activities unless doing so would be
inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (for example,
materials specifications, test methods, sampling procedures, business
practices, etc.) that are developed or adopted by voluntary consensus
standard bodies. Where EPA does not use available and potentially
applicable voluntary consensus standards, the Act requires the Agency
to provide Congress, through the OMB, an explanation of the reasons for
not using such standards.
This rule 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, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: November 8, 2000.
Willie H. Harris,
Acting Director, Waste, Pesticides and Toxics 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
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]
2. In Table 2 of Appendix IX of Part 261 add the following waste
stream in alphabetical order by facility to read as follows:
[[Page 75905]]
Appendix IX to Part 261--Wastes Excluded Under Secs. 260.20 and 260.22
* * * * *
Table 2.--Wastes Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
Heritage Environmental Services, Crawfordsville, Indiana.................. Treated electric arc furnace dust
LLC., at Nucor Steel. (EAFD), K061, that is generated
by Heritage Environmental
Services, LLC (Heritage) and
Nucor Steel, Division of Nucor,
Corporation (Nucor) at Nucor's
Crawfordsville, Indiana plant at
a maximum annual rate of 30,000
cubic yards per year and disposed
of in a Subtitle D landfill,
after (insert publication date of
the final rule).
(1) Delisting Levels:
(A) The constituent concentrations
measured in either of the
extracts specified in Paragraph
(2) may not exceed the following
levels (mg/L): Antimony--0.206;
Arsenic--0.0936; Barium--55.7;
Beryllium--0.416; Cadmium--0.15;
Chromium (total)--1.55; Lead--
5.0; Mercury--0.149; Nickel--
28.30; Selenium--0.58; Silver--
3.84; Thallium--0.088; Vanadium--
21.1; Zinc--280.0.
(B) Total mercury may not exceed 1
mg/kg.
(2) Verification Testing: On a
monthly basis, Heritage or Nucor
must analyze two samples of the
waste using the TCLP method, the
TCLP procedure with an extraction
fluid of pH 12 0.05
standard units and SW-846 Method
7470 for mercury. The constituent
concentrations measured must be
less than the delisting levels
established in Paragraph (1).
(3) Changes in Operating
Conditions: If Nucor
significantly changes the
manufacturing process or
chemicals used in the
manufacturing process or Heritage
significantly changes the
treatment process or the
chemicals used in the treatment
process, Heritage or Nucor must
notify the EPA of the changes in
writing. Heritage and Nucor must
handle wastes generated after the
process change as hazardous until
Heritage or Nucor has
demonstrated that the wastes
continue to meet the delisting
levels set forth in Paragraph (1)
and that no new hazardous
constituents listed in Appendix
VIII of Part 261 have been
introduced and Heritage and Nucor
have received written approval
from EPA.
(4) Data Submittals: Heritage must
submit the data obtained through
monthly verification testing or
as required by other conditions
of this rule to U.S. EPA Region
5, Waste Management Branch (DW-
8J), 77 W. Jackson Blvd.,
Chicago, IL 60604 by February 1
of each calendar year for the
prior calendar year. Heritage or
Nucor must compile, summarize,
and maintain on site for a
minimum of five years records of
operating conditions and
analytical data. Heritage or
Nucor must make these records
available for inspection. All
data must be accompanied by a
signed copy of the certification
statement in 40 CFR
260.22(i)(12).
(5) Reopener Language--(A) If,
anytime after disposal of the
delisted waste, Heritage or Nucor
possesses or is otherwise made
aware of any data (including but
not limited to leachate data or
groundwater monitoring data)
relevant to the delisted waste
indicating that any constituent
identified in Paragraph (1) is at
a level in the leachate higher
than the delisting level
established in Paragraph (1), or
is at a level in the groundwater
higher than the maximum allowable
point of exposure concentration
predicted by the CMTP model, then
Heritage or Nucor 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 (5)(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 the
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
Heritage and Nucor 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 Heritage and Nucor with
an opportunity to present
information as to why the
proposed Agency action is not
necessary or to suggest an
alternative action. Heritage and
Nucor shall have 30 days from the
date of the Regional
Administrator's notice to present
the information.
(D) If after 30 days Heritage or
Nucor presents no further
information, 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.
[[Page 75906]]
* * * * * *
*
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* * * * *
[FR Doc. 00-29647 Filed 12-4-00; 8:45 am]
BILLING CODE 6560-50-P