[Federal Register Volume 65, Number 153 (Tuesday, August 8, 2000)]
[Proposed Rules]
[Pages 48434-48444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-20020]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FRL-6847-5]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Proposed Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule; request for comment.
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SUMMARY: The Environmental Protection Agency (EPA or Agency) today is
proposing to grant a petition submitted by Tyco Printed Circuit Group,
Melbourne Division, Melbourne, Florida, (Tyco), formerly Advanced Quick
Circuits, L.P., to exclude (or ``delist'') a certain hazardous waste
from the list of hazardous wastes in 40 CFR 261.31. Tyco generates the
petitioned waste by treating liquid waste from Tyco's printed circuit
board manufacturing processes. The waste so generated is a wastewater
treatment sludge that meets the definition of F006 in Sec. 261.31. Tyco
petitioned EPA to grant a generator-specific delisting, because Tyco
believes that its F006 waste does not meet the criteria for which this
type of waste was listed. EPA reviewed all of the waste-specific
information provided by Tyco, performed calculations, and determined
that the waste could be disposed in a landfill without harming human
health and the environment. Today's proposed rule proposes to grant
Tyco's petition to delist its F006 waste, and requests public comment
on the proposed decision. If the proposed delisting becomes a final
delisting, Tyco's petitioned waste will no longer be classified as
F006, and will not be subject to regulation as a hazardous waste under
Subtitle C of the Resource Conservation and Recovery Act (RCRA). The
waste will still be subject to local, State, and Federal regulations
for nonhazardous solid wastes.
DATES: EPA is requesting public comments on this proposed decision.
Comments will be accepted until September 22, 2000. Comments postmarked
after the close of the comment period will be stamped ``late.''
Any person may request a hearing on this proposed decision by
filing a request with Richard D. Green, Director of the Waste
Management Division, EPA, Region 4, whose address appears below, by
August 23, 2000. The request must contain the information prescribed in
section 260.20(d).
ADDRESSES: Send two copies of your comments to Jewell Grubbs, Chief,
RCRA Enforcement and Compliance Branch, U.S. Environmental Protection
Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street,
Atlanta, Georgia 30303. Send one copy to Bob Snyder, Central District
Office, Florida Department of Environmental Protection, 3319 Maguire
Boulevard, Suite 232, Orlando, Florida 32803-3767. Identify your
comments at the top with this regulatory docket number: R4-99-01-TycoP.
Comments may also be submitted by e-mail to
[email protected]. If files are attached, please identify the
format.
Requests for a hearing should be addressed to Richard D. Green,
Director, Waste Management Division, U.S. Environmental Protection
Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street,
Atlanta, Georgia 30303.
The RCRA regulatory docket for this proposed rule is located at the
EPA Library, U.S. Environmental Protection Agency, Region 4, Sam Nunn
Atlanta Federal Center, 61 Forsyth Street, Atlanta, Georgia 30303, and
is available for viewing from 9:00 a.m. to 4:00 p.m., Monday through
Friday, excluding Federal holidays. The docket contains
[[Page 48435]]
the petition, all information submitted by the petitioner, and all
information used by EPA to evaluate the petition.
The public may copy material from any regulatory docket at no cost
for the first 100 pages, and at a cost of $0.15 per page for additional
copies.
Copies of the petition are available during normal business hours
at the following addresses for inspection and copying: U.S. EPA, Region
4, Library, Sam Nunn Atlanta Federal Center, 61 Forsyth Street,
Atlanta, Georgia 30303, (404) 562-8190; and Central District Branch
Office, Florida Department of Environmental Protection, 13 East
Melbourne Avenue, Melbourne, Florida 32901, (321) 984-4800. The EPA,
Region 4, Library is located near the Five Points MARTA station in
Atlanta. The Central District Branch Office in Melbourne is located in
the southeast corner of Melbourne Avenue and Babcock Street.
FOR FURTHER INFORMATION CONTACT: For general and technical information
about this proposed rule, contact Judy Sophianopoulos, South
Enforcement and Compliance Section, (Mail Code 4WD-RCRA), U.S.
Environmental Protection Agency, Region 4, Sam Nunn Atlanta Federal
Center, 61 Forsyth Street, Atlanta, Georgia 30303, (404) 562-8604, or
call, toll free, (800) 241-1754, and leave a message, with your name
and phone number, for Ms. Sophianopoulos to return your call.
SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed
in the following outline:
I. Background
A. What Laws and Regulations Give EPA the Authority to Delist
Wastes?
B. How did EPA Evaluate this Petition?
II. Disposition of Delisting Petition
A. Summary of Delisting Petition Submitted by Tyco Printed
Circuit Group, Melbourne Division, Melbourne, FL Circuits, LP
(Tyco), Melbourne, Florida
B. What Delisting Levels Did EPA Obtain with the EPACML Model?
C. What Delisting Levels Did EPA Obtain by Using UTS Levels or
HTMR Exclusion Levels?
D. How Did EPA Use the Multiple Extraction Procedure (MEP) to
Evaluate This Delisting Petition?
E. Should EPA Set Limits on Total Concentrations, as well as on
TCLP Leachate Concentrations, that the Petitioned Waste must Meet in
order to be Delisted?
F. Should EPA Evaluate this Petitioned Waste for Recovery of
Metals, as well as for Disposal in a Landfill?
G. Conclusion
III. Limited Effect of Federal Exclusion
Will this Rule Apply in All States?
IV. Effective Date
V. Paperwork Reduction Act
VI. National Technology Transfer and Advancement Act
VII. Unfunded Mandates Reform Act
VIII. Regulatory Flexibility Act, as Amended by the Small Business
Regulatory Enforcement and Fairness Act
IX . Executive Order 12866
X. Executive Order 12875
XI. Executive Order 13045
XII. Executive Order 13084
XIII. Submission to Congress and General Accounting Office
I. Background
A. What Laws and Regulations Give EPA the Authority To Delist Wastes?
On January 16, 1981, as part of its final and interim final
regulations implementing section 3001 of RCRA, EPA published an amended
list of hazardous wastes from non-specific and specific sources. This
list has been amended several times, and is published in 40 CFR 261.31
and 261.32. These wastes are listed as hazardous because they exhibit
one or more of the characteristics of hazardous wastes identified in
subpart C of part 261 (i.e., ignitability, corrosivity, reactivity, and
toxicity) or meet the criteria for listing contained in Sec. 261.11
(a)(2) or (a)(3).
Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
that is described in these regulations generally is hazardous, a
specific waste from an individual facility meeting the listing
description may not be. For this reason, sections 260.20 and 260.22
provide an exclusion procedure, allowing persons to demonstrate that a
specific waste from a particular generating facility should not be
regulated as a hazardous waste.
To have their wastes excluded, petitioners must show, first, that
wastes generated at their facilities do not meet any of the criteria
for which the wastes were listed. See section 260.22(a) and the
background documents for the listed wastes. Second, the Administrator
must determine, where he/she has a reasonable basis to believe that
factors (including additional constituents) other than those for which
the waste was listed could cause the waste to be a hazardous waste,
that such factors do not warrant retaining the waste as a hazardous
waste. Accordingly, a petitioner also must demonstrate that the waste
does not exhibit any of the hazardous waste characteristics (i.e.,
ignitability, reactivity, corrosivity, and toxicity), and must present
sufficient information for the EPA to determine whether the waste
contains any other toxicants at hazardous levels. See section
260.22(a), 42 U.S.C. 6921(f), and the background documents for the
listed wastes. Although wastes which are ``delisted'' (i.e., excluded)
have been evaluated to determine whether or not they exhibit any of the
characteristics of hazardous waste, generators remain obligated under
RCRA to determine whether or not their wastes continue to be
nonhazardous based on the hazardous waste characteristics (i.e.,
characteristics which may be promulgated subsequent to a delisting
decision.)
In addition, residues from the treatment, storage, or disposal of
listed hazardous wastes and mixtures containing listed hazardous wastes
are also considered hazardous wastes. See Secs. 261.3(a)(2)(iv) and
(c)(2)(i), referred to as the ``mixture'' and ``derived-from'' rules,
respectively. Such wastes are also eligible for exclusion and remain
hazardous wastes until excluded. On December 6, 1991, the U.S. Court of
Appeals for the District of Columbia vacated the ``mixture/derived-
from'' rules and remanded them to the EPA on procedural grounds. Shell
Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). On March 3, 1992, EPA
reinstated the mixture and derived-from rules, and solicited comments
on other ways to regulate waste mixtures and residues (57 FR 7628).
These rules became final on October 30, 1992 (57 FR 49278), and should
be consulted for more information regarding waste mixtures and solid
wastes derived from treatment, storage, or disposal of a hazardous
waste. The mixture and derived-from rules are codified in 40 CFR 261.3,
paragraphs (b)(2) and (c)(2)(i). EPA plans to address waste mixtures
and residues when the final portion of the Hazardous Waste
Identification Rule (HWIR) is promulgated.
On October 10, 1995, the Administrator delegated to the Regional
Administrators the authority to evaluate and approve or deny petitions
submitted in accordance with sections 260.20 and 260.22, by generators
within their Regions (National Delegation of Authority 8-19), in States
not yet authorized to administer a delisting program in lieu of the
Federal program. On March 11, 1996, the Regional Administrator of EPA,
Region 4, redelegated delisting authority to the Director of the Waste
Management Division (Regional Delegation of Authority 8-19).
B. How Did EPA Evaluate This Petition?
This petition requests a delisting for a hazardous waste listed as
F006. In making the initial delisting determination, EPA evaluated the
petitioned waste against the listing
[[Page 48436]]
criteria and factors cited in Sec. 261.11 (a)(2) and (a)(3). Based on
this review, the EPA agrees with the petitioner that the waste is
nonhazardous with respect to the original listing criteria. (If EPA had
found, based on this review, that the waste remained hazardous based on
the factors for which the waste was originally listed, EPA would have
proposed to deny the petition.) EPA then evaluated the waste with
respect to other factors or criteria to assess whether there is a
reasonable basis to believe that such additional factors could cause
the waste to be hazardous. See Sec. 260.22 (a) and (d). The EPA
considered whether the waste is acutely toxic, and considered the
toxicity of the constituents, the concentration of the constituents in
the waste, their tendency to migrate and to bioaccumulate, their
persistence in the environment once released from the waste, plausible
and specific types of management of the petitioned waste, the
quantities of waste generated, and waste variability.
For this delisting determination, EPA used such information to
identify plausible exposure routes (i.e., groundwater, surface water,
air) for hazardous constituents present in the petitioned waste. EPA
used the EPA Composite Model for Landfills (EPACML) fate and transport
model, modified for delisting, as one approach for determining the
proposed delisting levels for Tyco's waste. See 56 FR 32993-33012, July
18, 1991, for details on the use of the EPACML model to determine the
concentrations of constituents in a waste that will not result in
groundwater contamination. Delisting levels are the maximum allowable
concentrations for hazardous constituents in the waste, so that
disposal in a landfill will not harm human health and the environment,
by contaminating groundwater, surface water, and air. A Subtitle D
landfill is a landfill subject to RCRA Subtitle D nonhazardous waste
regulations, and to State and local nonhazardous waste regulations. If
EPA makes a final decision to delist Tyco's F006 waste, Tyco must meet
the delisting levels and dispose of the waste in a Subtitle D landfill,
because EPA determined the delisting levels based on a landfill model.
With the EPACML approach, EPA caclulated a delisting level for each
hazardous constituent by using the maximum estimated waste volume to
determine a Dilution Attenuation Factor (DAF) from a table of waste
volumes and DAFs previously calculated by the EPACML model. See Table 2
of section II.B. below, which is adapted from 56 FR 32993-33012, July
18, 1991. The maximum estimated waste volume is the maximum number of
cubic yards of petitioned waste that Tyco estimated it would dispose of
each year. The delisting level for each constituent is equal to the DAF
multiplied by the maximum contaminant level (MCL) which the Safe
Drinking Water Act allows for that constituent in drinking water. The
delisting level is a concentration in the waste leachate that will not
cause the MCL to be exceeded in groundwater underneath a landfill where
the waste is disposed. This method of calculating delisting levels
results in conservative levels that are protective of groundwater,
because the model does not assume that the landfill has the controls
required of many Subtitle D landfills.
EPA is requesting comment on the use of the EPACML model to
determine the proposed delisting levels for Tyco's petitioned waste, as
well as other methods that will be described below.
Tyco submitted to the EPA analytical data on nine samples of its
F006 waste collected during a six-month period.
After reviewing the analytical data and information on processes
and raw materials that Tyco submitted in the delisting petition, EPA
developed a list of constituents of concern and calculated delisting
levels for them, using MCLs and EPACML DAFs, as described above.
EPA requests comment on whether the following method of setting
delisting levels for the constituents of concern would be more
appropriate than the EPACML method:
Delisting levels would be either the Universal Treatment Standards
(UTS) levels of the Land Disposal Restrictions (LDR) regulations in 40
CFR part 268 or the generic exclusion levels for residues from
treatment of F006 by High Temperature Metal Recovery (HTMR), in 40 CFR
261.3(c)(2)(ii)(C)(1). For each constituent of concern, the delisting
level would be the lower of those two sets of values. If the HTMR level
is lower than the UTS level, the delisting level would be the HTMR
level; if the UTS level is lower than the HTMR level, the UTS level
would be chosen as the delisting level.
EPA also requests comment on three additional methods of evaluating
Tyco's delisting petition and determining delisting levels: (1) Use of
the Multiple Extraction Procedure (MEP), SW-846 Method 1320,\1\ to
evaluate the long-term resistance of the waste to leaching in a
landfill; (2) setting limits on total concentrations of constituents in
the waste, based on calculations of constituent release from waste in a
landfill to surface water and air, and release during waste transport;
and (3) setting delisting levels for waste that will be sent to a
smelter for metal recovery, where the levels would be calculated in
accordance with EPA's Human Health Risk Assessment Procedure (HHRAP)
for combustion risk assessment or the delisting levels would be the
same as for land disposal, with the additional requirement that the
smelting facility be in compliance with a permit issued under the
authority of the Clean Air Act .
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\1\ ``SW-846'' means EPA Publication SW-846, ``Test Methods for
Evaluating Solid Waste, Physical/Chemical Methods.'' Methods in this
publication are referred to in today's proposed rule as ``SW-846,''
followed by the appropriate method number.
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The EPA provides notice and an opportunity for comment before
granting or denying a final exclusion. Thus, a final decision will not
be made until all timely public comments (including those at public
hearings, if any) on today's proposal are addressed. Late comments will
be considered to the extent possible.
II. Disposition of Delisting Petition
A. Summary of Delisting Petition Submitted by Tyco Printed Circuit
Group, Melbourne Division, Melbourne, FL Circuits, LP (Tyco),
Melbourne, Florida
Tyco manufactures printed circuit boards, and is seeking a
delisting for the sludge generated by treating liquid wastes from its
electroplating operations. This waste meets the listing definition of
F006 in Sec. 261.31.\2\
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\2\ ``Wastewater treatment sludges from electroplating
operations except from the following processes: (1) sulfuric acid
anodizing of aluminum; (2) tin plating on carbon steel; (3) zinc
plating (segregated basis) on carbon steel; (4) aluminum or zinc-
aluminum plating on carbon steel; and (6) chemical etching and
milling of aluminum.''
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Tyco petitioned the Administrator, on August 26, 1998, to exclude
this F006 waste, on a generator-specific basis, from the lists of
hazardous wastes in 40 CFR part 261, subpart D. In accordance with the
delegation of delisting authority, the Administrator transmitted the
petition to EPA, Region 4, and on September 11, 1998, Tyco submitted
the petition to EPA, Region 4.
The hazardous constituents of concern for which F006 was listed are
cadmium, hexavalent chromium, nickel, and cyanide (complexed). Tyco
petitioned the EPA to exclude its F006 waste because Tyco does not
believe that the waste meets the criteria of the listing.
Tyco claims that its F006 waste is not hazardous because the
constituents of concern are either present at low
[[Page 48437]]
concentrations, or do not leach out of the waste at significant
concentrations. Tyco also believes that this waste is not hazardous for
any other reason (i.e., there are no additional constituents or factors
that could cause the waste to be hazardous). Review of this petition
included consideration of the original listing criteria, as well as the
additional factors required by the Hazardous and Solid Waste Amendments
(HSWA) of 1984. See section 222 of HSWA, 42 U.S.C. 6921(f), and 40 CFR
260.22(d)(2)-(4). Today's proposal to grant this petition for delisting
is the result of the EPA's evaluation of Tyco's petition.
In support of its petition, Tyco submitted: (1) Descriptions of its
manufacturing and wastewater treatment processes, the generation point
of the petitioned waste and the manufacturing steps that contribute to
its generation; (2) Material Safety Data Sheets (MSDSs) for process
materials; (3) Quantities of petitioned waste generated each year from
1983 through 1997; (4) results of analysis for water, metals, cyanide,
sulfide, and oil and grease in the waste; (5) results of the analysis
of waste leachate obtained by means of the Toxicity Characteristic
Leaching Procedure ((TCLP), SW-846 Method 1311) for metals; (6) results
of the determinations for the hazardous characteristics of
ignitability, corrosivity, and reactivity; and (7) results of the MEP
analysis of the waste.
Tyco operates two electroplating operations on John Rodes Boulevard
in Melbourne, Florida, that electroplate copper, tin/lead, nickel, and
gold in the process of manufacturing printed circuit boards. One of the
operations manufactures printed circuit boards mainly for commercial
and military customers; the other is set up for high-tech, quick-
turnaround manufacturing of printed circuit boards. Wastewater and off-
specification plating solutions from both operations are piped to an
on-site wastewater treatment facility, where they are treated by pH
adjustment and flocculation to precipitate dissolved metals as metal
hydroxides. The precipitated metal hydroxides are filtered, pressed,
and concentrated, at which point, F006 sludge is generated.
Tyco's average annual generation rate of F006 from 1983 through
1997 was 192 tons, with a minimum of 134 tons in 1989 and a maximum of
334.53 tons in 1990. Tyco estimated a future maximum generation rate of
300 tons per year, and stated that actual generation rates depend on
sales.
Table 1 below summarizes the hazardous constituents and their
concentrations in Tyco's petitioned waste.
Table 1.--Tyco Printed Circuit Group, Melbourne Division: F006 Sludge Profile
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Sample number
Name of constituent \1\ -------------------------------------------------------------------------------------------------------------------------
1 2 3 4 5 6 7 8 9
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1. Arsenic.................... 0.02U \2\ 0.20U 0.20U 0.10U 0.10U 0.10U 0.05U 0.05U 0.05U
2. Barium..................... 10U 10U 10U 0.50 0.60 0.80 2.0U 2.0U 20U
3. Cadmium.................... 0.50U 0.50U 0.50U 0.024 0.036 0.020 0.10U 0.10U 0.10U
4. Chromium................... 1U 1U 1U 0.10U 0.10U 0.10U 0.10U 0.50 0.50U
5. Lead....................... 1U 1U 1U 0.20 0.19 0.16 0.50U 0.50U 0.50U
6. Mercury.................... .005U .005U .005U .005U .005U .005U .005U .005U .005U
7. Selenium................... 0.50U 0.05U 0.05U 0.010U 0.020U 0.010U 0.050U 0.050U 0.050U
8. Silver..................... 1U 1U 1U 0.40U 0.040U 0.040U 0.20U 0.20U 0.20U
9. Cyanide.................... NA NA 0.10U 0.10U 0.10U 0.20U 0.10 1.5 NA
10. Oil and Grease............ NA NA 100 130 13000 22000 2700 580 16000
11. Sulfide................... NA NA 10U 10U 10U 10U 17U 10U 10U
12. Nickel.................... NA NA NA NA NA NA NA 2100 960
13. Nickel.................... NA NA NA NA NA NA NA NA 0.50U
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\1\ For all metals, except nickel, the concentrations in Table 1 are in milligrams per liter (mg/l) in the TCLP leachate. Concentrations in the
unextracted waste (total concentrations), in milligrams per kilogram (mg/kg), are given for cyanide, oil and grease, and sulfide. The total
concentration (mg/kg) of nickel in the sludge samples is given in row 12, and the TCLP concentration of nickel (mg/l) is given in row 13.
\2\ U=Not detected to level shown; NA = Not analyzed.
EPA concluded after reviewing Tyco's waste management and waste
history information that no other hazardous constituents, other than
those tested for, are likely to be present in Tyco's petitioned waste.
In addition, on the basis of test results and other information
provided by Tyco, pursuant to Sec. 260.22, EPA concluded that the
petitioned waste does not exhibit any of the characteristics of
ignitability, corrosivity, or reactivity. See Secs. 261.21, 261.22, and
261.23, respectively.
During its evaluation of Tyco's petition, EPA also considered the
potential impact of the petitioned waste on media other than
groundwater. With regard to airborne dispersal of waste, EPA evaluated
the potential hazards resulting from airborne exposure to waste
contaminants from the petitioned waste using an air dispersion model
for releases from a landfill. The results of this evaluation indicated
that there is no substantial present or potential hazard to human
health from airborne exposure to constituents from Tyco's petitioned
waste. (A description of EPA's assessment of the potential impact of
airborne dispersal of Tyco's petitioned waste is presented in the RCRA
public docket for today's proposed rule.)
EPA evaluated the potential impact of the petitioned waste on
surface water, because of storm water runoff from a landfill containing
the petitioned waste, and found that the waste would not present a
threat to human health or the environment. (See the docket for today's
proposed rule for a description of this analysis). In addition, EPA
believes that containment structures at municipal solid waste landfills
can effectively control runoff, as Subtitle D regulations (see 56 FR
50978, October 9, 1991) prohibit pollutant discharges into surface
waters. While some contamination of surface water is possible through
runoff from a waste disposal area, EPA believes that the dissolved
concentrations of hazardous constituents in the runoff are likely to be
lower than the extraction procedure test results reported in today's
proposed rule, because of the aggressive acidic medium used for
extraction in the TCLP. EPA also believes that, in general, leachate
derived from the waste will not directly enter a surface water body
without first traveling through the saturated subsurface where dilution
of hazardous constituents may occur. Transported contaminants would be
further diluted in the receiving water body. Subtitle D controls would
[[Page 48438]]
minimize significant releases to surface water from erosion of
undissolved particulates in runoff.
B. What Delisting Levels Did EPA Obtain With the EPACML Model?
In order to account for possible variability in the generation
rate, EPA calculated delisting levels using a generation rate of 500
tons per year, rather than Tyco's estimate of an annual maximum of 300
tons. EPA converted the 500 tons to a waste volume of 590 cubic yards,
by using the density of water for the density of the sludge. While the
sludge is certainly more dense than water, using the lower density
results in a higher value for the waste volume, and a lower, more
conservative, Dilution Attenuation Factor (DAF). Table 2 below is a
table of waste volumes in cubic yards and the corresponding DAFs from
the EPACML model. EPA obtained a DAF of 100 from Table 2, for Tyco's
petitioned waste.
Table 2.--Dilution/Attenuation Factors (DAFs) for Landfills Calculated
by the EPACML Model, Modified for Delisting
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DAF (95th
Waste volume in cubic yards per year \1\ percentile) \2\
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1,000.............................................. \3\ 100
1,250.............................................. 96
1,500.............................................. 90
1,750.............................................. 84
2,000.............................................. 79
2,500.............................................. 74
3,000.............................................. 68
4,000.............................................. 57
5,000.............................................. 54
6,000.............................................. 48
7,000.............................................. 45
8,000.............................................. 43
9,000.............................................. 40
10,000............................................. 36
12,500............................................. 33
15,000............................................. 29
20,000............................................. 27
25,000............................................. 24
30,000............................................. 23
40,000............................................. 20
50,000............................................. 19
60,000............................................. 17
80,000............................................. 17
90,000............................................. 16
100,000............................................ 15
150,000............................................ 14
200,000............................................ 13
250,000............................................ 12
300,000............................................ 12
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\1\ The waste volume includes a scaling factor of 20 (56 FR 32993, July
18, 1991; and 56 FR 67197, Dec. 30, 1991), where the annual volume of
waste in the table is assumed to be sent to a landfill every year for
20 years.
\2\ The DAFs calculated by the EPACML are a probability distribution
based on a range of values for each model input parameter; the input
parameters include such variables as landfill size, climatic data, and
hydrogeologic data. The 95th percentile DAF represents a value in
which one can have 95% confidence that a contaminant's concentration
will be reduced by a factor equal to the DAF, as the contaminant moves
from the bottom of the landfill through the subsurface environment to
a receptor well. For example, if the 95th percentile DAF is 10, and
the leachate concentration of cadmium at the bottom of the landfill is
0.05 mg/l, one can be 95% confident that the receptor well
concentration of cadmium will not exceed 0.005 mg/l. See 55 FR 11826,
March 29, 1990; 56 FR 32993, July 18, 1991; and 56 FR 67197, December
30, 1991.
\3\ DAF cutoff is 100, corresponding to the Toxicity Characteristic Rule
(55 FR 11826, March 29, 1990).
Table 3 below is a table of EPACML delisting levels for each
constituent of concern in Tyco's petitioned waste. The constituents of
concern are barium, cadmium, chromium, cyanide, lead, and nickel, and
the DAF is 100 for the maximum estimated volume.
Table 3.--Delisting Levels Calculated From EPACML Model for Tyco
Petitioned Waste
------------------------------------------------------------------------
Delisting
Constituent MCL \1\ (mg/l) level (mg/l
TCLP)
------------------------------------------------------------------------
Barium.................................. 2 200
Cadmium................................. 0.005 0.5
Chromium................................ 0.10 \2\ 5
Cyanide................................. 0.20 \3\ 20
Lead.................................... \4\ 0.015 1.5
Nickel.................................. \5\ 0.73 73
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\1\ See the ``Docket Report on Health-based Levels and Solubilities Used
in the Evaluation of Delisting Petitions, Submitted Under 40 CFR
260.20 and 260.22,'' December 1994, located in the RCRA public docket,
for the Agency's methods of calculating health-based levels for
evaluating delisting petitions from MCLs, and when MCLs are not
available.
\2\ The Toxicity Characteristic (TC) regulatory level for chromium in 40
CFR 261.24 is 5 mg/l. Therefore, although a DAF of 100 times 0.10
equals 10, the delisting level cannot be greater than 5 mg/l, because
a delisted waste must not exhibit a hazardous characteristic.
\3\ The TCLP is to be followed for cyanide, except that deionized water
must be used as the leaching medium, instead of the acetic acid or
acetate buffer specified in the TCLP. SW-846 Method 9010 or 9012 must
be used to measure cyanide concentration in the deionized water
leachate.
\4\ This value is an action level for a Publicly Owned Treatment Works,
rather than a MCL.
\5\ This value is a value that is protective of tap water, obtained from
EPA Region 9's Preliminary Remediation Goals Tables. Internet address
is: http://www.epa.gov/region09/waste/sfund/prg/s1__05.htm.
C. What Delisting Levels Did EPA Obtain by Using UTS Levels or HTMR
Exclusion Levels?
Please see Table 4 below.
TABLE 4.--Delisting Levels From UTS Levels or HTMR Exclusion Levels
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HTMR (mg/l TCLP, except
Constituent UTS (mg/l TCLP) [40 for cyanide) \1\ [40 CFR Delisting level (mg/l TCLP,
CFR 268.48] 261.3(c)(2)(ii)(C)(1)] except for cyanide) \1\
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Barium........................... 21................. 7.6....................... 7.6.
Cadmium.......................... 0.11............... 0.050..................... 0.050.
Chromium......................... 0.60............... 0.33...................... 0.33.
Cyanide.......................... 590 (total); 30 1.8 (total)............... 1.8 (total).
(amenable)\1\.
Lead............................. 0.75............... 0.15...................... 0.15.
Nickel........................... 11................. 1.0....................... 1.0.
----------------------------------------------------------------------------------------------------------------
\1\ Cyanide concentrations must be measured by the method specified in 40 CFR 268.40, Note 7. In order to meet
the UTS levels, the cyanide (total, not amenable) concentration must not exceed 590 mg/kg, and the
concentration of cyanide amenable to chlorination must not exceed 30 mg/kg. Cyanide amenable to chlorination
is a measure of free, uncomplexed cyanide. These concentrations are by total analysis of the waste, not
analysis of waste leachate. In order to meet the generic exclusion level for HTMR residues, the cyanide
(total, not amenable) concentration must not exceed 1.8 mg/kg, by total analysis, not analysis of leachate.
[[Page 48439]]
D. How Did EPA Use the Multiple Extraction Procedure (MEP) To Evaluate
This Delisting Petition?
EPA developed the MEP test (SW-846 Method 1320) to help predict the
long-term resistance to leaching of stabilized wastes, which are wastes
that have been treated to reduce the leachability of hazardous
constituents. The MEP consists of a TCLP extraction of a sample
followed by nine sequential extractions of the same sample, using a
synthetic acid rain extraction fluid (prepared by adding a 60/40 weight
mixture of sulfuric acid and nitric acid to distilled deionized water
until the pH is 3.00.2). The sample which is subjected to
the nine sequential extractions consists of the solid phase remaining
after, and separated from, the initial TCLP extract. EPA designed the
MEP to simulate multiple washings of percolating rainfall in the field,
and estimates that these extractions simulate approximately 1,000 years
of rainfall. (See 47 FR 52687, Nov. 22, 1982.) MEP results are
presented in Table 5 below. In response to a request by EPA for
additional information, Tyco reported the following practical
quantitation limits in the MEP test: 2.0 mg/l for barium; and 0.5 mg/l
for cadmium, chromium, lead, and nickel. Table 5 presents the results
of analysis of MEP extracts.
Table 5.--Multiple Extraction Procedure (SW-846 Method 1320) Results for Tyco'S Petitioned Waste \1\
----------------------------------------------------------------------------------------------------------------
Barium Cadmium Chromium Nickel pH \2\ (before/
Extract No. (Ba) (Cd) (Cr) Lead (Pb) (Ni) after)
----------------------------------------------------------------------------------------------------------------
1 (TCLP)..................... 2.0 U \1\ 0.10 U 0.50 U 0.50 U 1.8 I \4\
2 (first extraction of the 0.50 U 0.020 U 0.10 U 0.10 U 0.20 I 6.827/7.616
MEP).
3............................ 0.50 U 0.020 U 0.10 U 0.10 0.10 U 7.406/NA \3\
4............................ 0.50 I 0.020 U 0.10 0.10 U 0.10 U 7.743/7.361
5............................ 0.50 U 0.020 U 0.10 0.10 U 0.10 U 7.821/8.345
6............................ 0.50 U 0.020 U 0.10 0.10 U 0.10 U 8.038/8.409
7............................ 0.50 U 0.020 U 0.10 U 0.10 U 0.10 U 7.980/8.605
8............................ 0.50 U 0.020 U 0.10 U 0.10 U 0.10 U 8.042/8.121
9............................ 0.50 U 0.020 U 0.10 U 0.10 U 0.10 U 8.112/8.121
10........................... 0.50 U 0.020 U 0.10 U 0.10 U 0.10 U 7.738/8.576
----------------------------------------------------------------------------------------------------------------
\1\ U = Not detected to level shown.
\2\ pH is a measure of the negative logarithm of the hydrogen ion activity in an aqueous solution, and is a
measure of how acidic or basic (alkaline) a solution is. At 25 deg.C, solutions with pH values less than 7
are acidic; greater than 7 are basic (alkaline); and a pH value of 7 indicates a neutral solution. In general,
metals and their compounds are less soluble in basic (alkaline) solutions. ``Start'' means pH at start of the
extraction and ``Finish'' means pH at the end of the extraction.
\3\ NA = Not analyzed.
\4\ I = Analyte detected at level between the Method Detection Level and the Practical Quantitation Level.
The MEP data in Table 5 indicate that the petitioned waste would be
expected to be resistant to leaching for a period of at least 100
years, because concentrations in each extract are either not detected,
or very close to the detection limit. The average life of a landfill is
approximately 20 years. (See 56 FR 32993, July 18, 1991; and 56 FR
67197, Dec. 30, 1991.)
The MEP pH data in Table 5 indicate that the pH of the petitioned
waste would be expected to remain alkaline for a period of more than
100 years. Most heavy metal hydroxides, like those in the petitioned
waste, tend to remain insoluble in water at alkaline pHs (pH greater
than 7).
E. Should EPA Set Limits on Total Concentrations, as well as on TCLP
Leachate Concentrations, that the Petitioned Waste must Meet in order
to be Delisted?
EPA requests public comment on the appropriateness of setting a
maximum of 20,000 mg/kg for the total concentration of nickel, and 500
mg/kg for the total concentration of each of the metals, barium,
cadmium, chromium, and lead, in the petitioned waste. These maximum
concentration limits would be in addition to the limits on the TCLP
concentrations proposed in preamble section II, paragraphs B and C.
F. Should EPA Evaluate This Petitioned Waste for Recovery of Metals, as
Well as for Disposal in a Landfill?
Metal recovery from Tyco's petitioned waste is economically
feasible. Tyco reported to EPA that the metal value of its petitioned
waste if sent directly to a metal smelter would be more than $200,000
per year.
EPA requests comment on the following proposed methods of delisting
the petitioned waste before shipping it to a metal smelter:
Method I requires that two conditions be met: (1) The waste must
meet the same delisting levels proposed for landfill disposal, and (2)
The metal recovery facility must have, and be in compliance with, a
permit issued in accordance with the Clean Air Act.\3\
---------------------------------------------------------------------------
\3\ Note that Federal, State, and local solid waste regulations
have always applied, and continue to apply, to the residues from the
metal recovery process.
---------------------------------------------------------------------------
Method II requires that the risk of smelting the waste must be
determined to be acceptable in accordance with EPA's Human Health Risk
Assessment Protocol (HHRAP) for combustion risk assessment.
G. Conclusion
EPA believes that Tyco's petitioned waste will not harm human
health and the environment when disposed in a nonhazardous waste
landfill, if the proposed delisting levels are met. EPA requests
comment on four proposals: (1) Delisting levels for land disposal based
on (a) the EPACML model, or (b) the LDR Universal Treatment Standards
or the generic delisting levels of 40 CFR 261.3(c)(2)(ii)(C)(1),
whichever are lower; (2) delisting levels for land disposal that set
limits for total concentrations; (3) delisting levels for metal
recovery that are the same as for land disposal, with the additional
requirement that the metal recovery facility must operate in compliance
with a permit issued in accordance with the Clean Air Act; and (4)
delisting levels for metal recovery that are based on the determination
of acceptable risk in accordance with EPA's Human Health Risk
Assessment Protocol (HHRAP) for combustion risk assessment.
EPA proposes to exclude Tyco's petitioned waste from being listed
as F006, based on descriptions of waste management and waste history,
evaluation of the results of waste sample analysis, and on the
requirement that Tyco's petitioned waste must meet
[[Page 48440]]
proposed delisting levels before disposal. Thus, EPA's proposed
decision is based on verification testing conditions. If the proposed
rule becomes effective, the exclusion will be valid only if the
petitioner demonstrates that the petitioned waste meets the
verification testing conditions and delisting levels in the amended
Table 1 of appendix IX of 40 CFR part 261. If the proposed rule becomes
final and EPA approves that demonstration, the petitioned waste would
not be subject to regulation under 40 CFR parts 262 through 268 and the
permitting standards of 40 CFR part 270. Although management of the
waste covered by this petition would, upon final promulgation, be
relieved from Subtitle C jurisdiction, the waste would remain a solid
waste under RCRA. As such, the waste must be handled in accordance with
all applicable Federal, State, and local solid waste management
regulations. Pursuant to RCRA section 3007, EPA may also sample and
analyze the waste to determine if delisting conditions are met.
III. Limited Effect of Federal Exclusion
Will This Rule Apply in All States?
This proposed rule, if promulgated, would be issued under the
Federal (RCRA) delisting program. States, however, are allowed to
impose their own, non-RCRA regulatory requirements that are more
stringent than EPA's, pursuant to section 3009 of RCRA. These more
stringent requirements may include a provision which prohibits a
Federally issued exclusion from taking effect in the States. Because a
petitioner's waste may be regulated under a dual system (i.e., both
Federal and State programs), petitioners are urged to contact State
regulatory authorities to determine the current status of their wastes
under the State laws. Furthermore, some States are authorized to
administer a delisting program in lieu of the Federal program, i.e., to
make their own delisting decisions. Therefore, this proposed exclusion,
if promulgated, would not apply in those authorized States. If the
petitioned waste will be transported to any State with delisting
authorization, Tyco must obtain delisting authorization from that State
before the waste may be managed as nonhazardous in that State.
IV. Effective Date
This rule, if made final, will become effective immediately upon
final publication. The Hazardous and Solid Waste Amendments of 1984
amended section 3010 of RCRA to allow rules to become effective in less
than six months when the regulated community does not need the six-
month period to come into compliance. That is the case here, because
this rule, if finalized, would reduce the existing requirements for the
petitioner. In light of the unnecessary hardship and expense that would
be imposed on this petitioner by an effective date six months after
publication and the fact that a six-month deadline is not necessary to
achieve the purpose of section 3010, EPA believes that this exclusion
should be effective immediately upon final publication. These reasons
also provide a basis for making this rule effective immediately, upon
final publication, under the Administrative Procedure Act, pursuant to
5 U.S.C. 553(d).
V. Paperwork Reduction Act
Information collection and recordkeeping 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.
VI. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pub. L. 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This proposed rulemaking involves environmental monitoring or
measurement. Consistent with the Agency's Performance Based measurement
System (``PBMS''), EPA proposes not to require the use of specific,
prescribed analytical methods, except when required by regulation in 40
CFR parts 260 through 270. Rather the Agency plans to allow the use of
any method that meets the prescribed performance criteria. The PBMS
approach is intended to be more flexible and cost-effective for the
regulated community; it is also intended to encourage innovation in
analytical technology and improved data quality. EPA is not precluding
the use of any method, whether it constitutes a voluntary consensus
standard or not, as long as it meets the performance criteria
specified.
VII. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``UMRA''), Public Law 104-4, which was signed into law on March 22,
1995, EPA generally must prepare a written statement for rules with
Federal mandates that may result in estimated costs to State, local,
and tribal governments in the aggregate, or to the private sector, of
$100 million or more in any one year. When such a statement is required
for EPA rules, under section 205 of the UMRA EPA must identify and
consider alternatives, including the least costly, most cost-effective
or least burdensome alternative that achieves the objectives of the
rule. EPA must select that alternative, unless the Administrator
explains in the final rule why it was not selected or it is
inconsistent with law. Before EPA establishes regulatory requirements
that may significantly or uniquely affect small governments, including
tribal governments, it must develop under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, giving them meaningful and
timely input in the development of EPA regulatory proposals with
significant Federal intergovernmental mandates, and informing,
educating, and advising them on compliance with the regulatory
requirements.
The UMRA generally defines a Federal mandate for regulatory
purposes as one that imposes an enforceable duty upon State, local, or
tribal governments or the private sector. EPA finds that today's
proposed 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 does not
establish any regulatory requirements for small governments and so does
not require a small government agency plan under UMRA section 203.
VIII. Regulatory Flexibility Act, as Amended by the Small Business
Regulatory Enforcement and Fairness Act
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612,
whenever an agency is required to publish a general notice of
rulemaking for any proposed or final rule, it must prepare and make
[[Page 48441]]
available for public comment a regulatory flexibility analysis that
describes the impact of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
No regulatory flexibility analysis is required, however, if the
Administrator or delegated representative certifies that the rule will
not have a significant economic impact on a substantial number of small
entities.
This rule, if promulgated, will not have an adverse economic impact
on any small entities since its effect would be to reduce the overall
costs of EPA's hazardous waste regulations and would be limited to one
facility. Accordingly, I hereby certify that this 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.
IX. Executive Order 12866
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or
(4) Raise novel legal of policy issues arising out of legal
mandates, the President's priorities or the principles set forth in
the Executive Order.
OMB has exempted this proposed rule from the requirement for OMB
review under Section (6) of Executive Order 12866.
X. 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.
XI. Executive Order 13045
The Executive Order 13045 is entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997). This order applies to any rule that EPA determines (1) is
economically significant as defined under Executive Order 12866, and
(2) the environmental health or safety risk addressed by the rule has a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. This rule is
not subject to Executive Order 13045 because this is not an
economically significant regulatory action as defined by Executive
Order 12866.
XII. 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
the communities of Indian tribal governments, and that imposes
substantial direct compliance costs on those communities, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by the tribal governments. If the mandate is
unfunded, EPA must provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian tribal governments ``to meaningful and timely input'' in the
development of regulatory policies on matters that significantly or
uniquely affect their communities of Indian tribal governments. Today's
proposed rulemaking does not significantly or uniquely affect the
communities of Indian tribal governments. Accordingly, the requirements
of section 3(b) of Executive Order 13084 do not apply to this proposed
rule.
XIII. Submission to Congress and General Accounting Office
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of Congress and to the Comptroller General of the United
States.
The EPA is not required to submit a rule report regarding today's
action under section 801 because this is a rule of particular
applicability, etc. Section 804 exempts from section 801 the following
types of rules: rules of particular applicability; rules relating to
agency management or personnel; and rules of agency organization,
procedures, or practice that do not substantially affect the rights or
obligations of non-agency parties. See 5 U.S.C. 804(3). This rule will
become effective on the date of publication in the Federal Register.
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: July 28, 2000.
Jewell Grubbs,
Acting Director, Waste Management Division.
For the reasons set out in the preamble, 40 CFR part 261 is
proposed to be amended as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
[[Page 48442]]
2. In Table 1 of appendix IX, part 261 add the following
wastestream in alphabetical order by facility to read as follows:
Appendix IX--Wastes Excluded Under Secs. 260.20 and 260.22
Table 1.--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
Tyco Printed Circuit Group, Melbourne Melbourne, Florida..... Wastewater treatment sludge (EPA Hazardous Waste
Division. No. F006) that Tyco Printed Circuit Group,
Melbourne Division (Tyco) generates by treating
wastewater from its circuit board manufacturing
plant located on John Rodes Blvd. in Melbourne,
Florida. This is a conditional exclusion for up
to 500 cubic yards of waste (hereinafter
referred to as ``Tyco Sludge'') that will be
generated each year and disposed in a Subtitle
D landfill after [insert date of final rule.]
Tyco must demonstrate that the following
conditions are met for the exclusion to be
valid. (Please see Conditon (8) for proposed
requirements for the exclusion to be valid for
waste that is sent to a smelter for metal
recovery.)
(1) Verification Testing Requirements: Sample
collection and analyses, including quality
control procedures must be performed according
to SW-846 methodologies, where specified by
regulations in 40 CFR parts 260-270. Otherwise,
methods must meet Performance Based Measurement
System Criteria in which the Data Quality
Objectives are to demonstrate that
representative samples of the Tyco Sludge meet
the delisting levels in Condition (3).
(A) Initial Verification Testing: Tyco must
collect and analyze a representative sample of
every batch, for eight sequential batches of
Tyco sludge generated in its wastewater
treatment system after [insert date of final
rule.]. A batch is the Tyco Sludge generated
during one day of wastewater treatment. Tyco
must analyze for the constituents listed in
Condition (3). A minimum of four composite
samples must be collected as representative of
each batch. Tyco must report analytical test
data, including quality control information, no
later than 60 days after generating the first
batch of Tyco Sludge to be disposed in
accordance with the delisting Conditions (1)
through (7).
(B) Subsequent Verification Testing: If the
initial verification testing in Condition
(1)(A) is successful, i.e., delisting levels of
condition (3) are met for all of the eight
initial batches, Tyco must test a minimum of 5%
of the Tyco Sludge generated each year. Tyco
must collect and analyze at least one composite
sample representative of that 5%. The composite
must be made up of representative samples
collected from each batch included in the 5%.
Tyco may, at its discretion, analyze composite
samples gathered more frequently to demonstrate
that smaller batches of waste are non-
hazardous.
(2) Waste Holding and Handling: Tyco must store
as hazardous all Tyco Sludge generated until
verification testing as specified in Condition
(1)(A) or (1)(B), as appropriate, is completed
and valid analyses demonstrate that Condition
(3) is satisfied. If the levels of constituents
measured in the samples of Tyco Sludge do not
exceed the levels set forth in Condition (3),
then the Tyco Sludge is non-hazardous and must
be managed in accordance with all applicable
solid waste regulations. If constituent levels
in a sample exceed any of the delisting levels
set forth in Condition (3), the batch of Tyco
Sludge generated during the time period
corresponding to this sample must be retreated
until it meets the delisting levels set forth
in Condition (3), or managed and disposed of in
accordance with Subtitle C of RCRA.
(3) Delisting Levels: All leachable
concentrations for these metals must not exceed
the following levels (ppm): Barium--7.6;
Cadmium--0.050; Chromium--0.33; Lead--0.15; and
Nickel--1.0. Metal concentrations must be
measured in the waste leachate by the method
specified in 40 CFR 261.24. The cyanide (total,
not amenable) concentration must not exceed 1.8
mg/kg, by total analysis, not analysis of
leachate. Cyanide concentrations must be
measured by the method specified in 40 CFR
268.40, Note 7.
(4) Changes in Operating Conditions: Tyco must
notify EPA in writing when significant changes
in the manufacturing or wastewater treatment
processes are necessary (e.g., use of new
chemicals not specified in the petition). EPA
will determine whether these changes will
result in additional constituents of concern.
If so, EPA will notify Tyco in writing that the
Tyco sludge must be managed as hazardous waste
F006, pending receipt and evaluation of a new
delisting petition. If EPA determines that the
changes do not result in additional
constituents of concern, EPA will notify Tyco,
in writing, that Tyco must repeat Condition
(1)(A) to verify that the Tyco Sludge continues
to meet Condition (3) delisting levels.
[[Page 48443]]
(5) Data Submittals: Data obtained in accordance
with Condition (1)(A) must be submitted to
Jewell Grubbs, Chief, RCRA Enforcement and
Compliance Branch, Mail Code: 4WD-RCRA, U.S.
EPA, Region 4, Sam Nunn Atlanta Federal Center,
61 Forsyth Street, Atlanta, Georgia. 30303.
This notification is due no later than 60 days
after generating the first batch of Tyco Sludge
to be disposed in accordance with delisting
Conditions (1) through (7). Records of
analytical data from Condition (1) must be
compiled, summarized, and maintained by Tyco
for a minimum of three years, and must be
furnished upon request by EPA or the State of
Florida, and made available for inspection.
Failure to submit the required data within the
specified time period or maintain the required
records for the specified time will be
considered by EPA, at its discretion,
sufficient basis to revoke the exclusion to the
extent directed by EPA. All data must be
accompanied by a signed copy of the following
certification statement to attest to the truth
and accuracy of the data submitted:
``Under civil and criminal penalty of law for
the making or submission of false or fraudulent
statements or representations (pursuant to the
applicable provisions of the Federal Code,
which include, but may not be limited to, 18
U.S.C. 1001 and 42 U.S.C. 6928), I certify that
the information contained or accompanying this
document is true, accurate and complete.
As to the (those) identified section(s) of this
document for which I cannot personally verify
its (their) truth and accuracy, I certify as
the company official having supervisory
responsibility for the persons who, acting
under my direct instructions, made the
verification that this information is true,
accurate and complete.
In the event that any of this information is
determined by EPA in its sole discretion to be
false, inaccurate or incomplete, and upon
conveyance of this fact to the company, I
recognize and agree that this exclusion of
waste will be void as if it never had effect or
to the extent directed by EPA and that the
company will be liable for any actions taken in
contravention of the company's RCRA and CERCLA
obligations premised upon the company's void
exclusion.''
(6) Reopener Language: (A) If, anytime after
disposal of the delisted waste, Tyco 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
the delisting verification testing is at a
level higher than the delisting level allowed
by EPA in granting the petition, Tyco must
report the data, in writing, to EPA within 10
days of first possessing or being made aware of
that data. (B) If the testing of the waste, as
required by Condition (1)(B), does not meet the
delisting requirements of Condition (3), Tyco
must report the data, in writing, to EPA within
10 days of first possessing or being made aware
of that data. (C) Based on the information
described in paragraphs (6)(A) or (6)(B) and
any other information received from any source,
EPA will make a preliminary determination as to
whether the reported information requires that
EPA take action to protect human health or the
environment. Further action may include
suspending, or revoking the exclusion, or other
appropriate response necessary to protect human
health and the environment. (D) If EPA
determines that the reported information does
require Agency action, EPA will notify the
facility in writing of the action believed
necessary to protect human health and the
environment. The notice shall include a
statement of the proposed action and a
statement providing Tyco with an opportunity to
present information as to why the proposed
action is not necessary. Tyco shall have 10
days from the date of EPA's notice to present
such information. (E) Following the receipt of
information from Tyco, as described in
paragraph (6)(D) or if no such information is
received within 10 days, EPA will issue a final
written determination describing the Agency
actions that are necessary to protect human
health or the environment, given the
information received in accordance with
paragraphs (6)(A) or (6)(B). Any required
action described in EPA's determination shall
become effective immediately, unless EPA
provides otherwise.
(7) Notification Requirements: Tyco must provide
a one-time written notification to any State
Regulatory Agency in a State to which or
through which the delisted waste described
above will be transported, at least 60 days
prior to the commencement of such activities.
Failure to provide such a notification will
result in a violation of the delisting
conditions and a possible revocation of the
decision to delist.
[[Page 48444]]
(8) Delisting Conditions to be Met Prior to
Shipping Waste to Smelter for Metal Recovery:
Tyco must provide a written notification to EPA
and the Florida Department of Environmental
Protection (FDEP), that includes the name,
address, and telephone number of each smelting
facility to which Tyco's petitioned waste will
be shipped. The notification must be provided
at least 60 days prior to the first shipment of
petitioned waste to be smelted. At the same
time, Tyco must notify EPA and FDEP of the
total concentrations (mg/kg) of barium,
cadmium, chromium, cyanide, lead, and nickel in
the waste to be smelted, and the concentrations
of barium, cadmium, chromium, lead, and nickel
in the TCLP leachate (mg/l) of the waste to be
smelted. If the risk determined in accordance
with EPA's Human Health Risk Assessment
Protocol (HHRAP) for combustion risk assessment
is unacceptable, the waste to be smelted must
be managed as F006.
* * * * * *
*
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[FR Doc. 00-20020 Filed 8-7-00; 8:45 am]
BILLING CODE 6560-50-U