[Federal Register Volume 66, Number 162 (Tuesday, August 21, 2001)]
[Proposed Rules]
[Pages 43823-43831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-21045]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-7034-2]
Hazardous Waste Management System; Proposed Exclusion for
Identifying 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 Ormet Primary Aluminum
Corporation (Ormet) to exclude (or ``delist'') vitrified spent potliner
(generated from primary aluminum production) at Ormet's Hannibal, Ohio
plant from the lists of hazardous wastes contained in subpart D of part
261.
The Agency has evaluated the waste-specific information provided by
Ormet and has tentatively decided to grant the exclusion based on our
conclusion that Ormet's vitrified spent potliner (VSP) is nonhazardous.
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).
DATES: Comments. We will accept public comments on this proposed
decision until October 5, 2001. We will 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 September 5, 2001. 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.
[[Page 43824]]
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.
FOR FURTHER INFORMATION CONTACT: For technical information concerning
this notice, contact Todd Ramaly at the address above or at (312) 353-
9317. 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.
SUPPLEMENTARY INFORMATION:
I. Overview Information
A. What action is EPA proposing?
B. Why is EPA proposing to approve this delisting?
C. How will Ormet 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 Ormet petition EPA to delist?
B. What information and analyses did Ormet submit to support
this petition?
C. How is the petitioned waste generated?
D. How did Ormet sample and analyze the data in this petition?
E. What were the results of Ormet's analysis?
F. How did EPA evaluate the risk of delisting this waste?
G. What other factors did EPA consider in evaluating this waste?
H. What did EPA conclude about Ormet'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 Ormet test the waste?
C. What must Ormet do if the process changes?
D. What data must Ormet submit?
E. What happens if Ormet'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 13045
X. Executive Order 13175
XI. National Technology Transfer And Advancement Act
XII. Executive Order 13132--Federalism
I. Overview Information
A. What Action Is EPA Proposing?
The EPA is proposing to grant Ormet's petition to have vitrified
spent potliner from the primary reduction of aluminum at Ormet's
Hannibal, Ohio plant, excluded, or delisted, from the definition of a
hazardous waste. We evaluated the petition using a fate and transport
model to predict the concentration of hazardous constituents which
could be released from the petitioned waste after it is disposed.
B. Why Is EPA Proposing To Approve This Delisting?
Ormet petitioned EPA to exclude, or delist, the VSP because Ormet
believes that the petitioned waste does not meet the RCRA criteria for
which EPA originally listed the waste and believes there are no
additional constituents or factors which could cause the waste to be
hazardous.
We evaluated the petitioned waste against the listing criteria and
factors cited in Sec. 261.11(a)(2) and (3). We also considered the
original listing criteria and any additional factors which could cause
the waste to be hazardous, as required by the Hazardous and Solid Waste
Amendments of 1984 (HSWA). See section 222 of HSWA, 42 U.S.C. 6921(f),
and 40 CFR 260.22 (d)(2)-(4).
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
hazardous 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.
Based on our review of the analytical data and other submitted
information we agree with the petitioner that the waste is nonhazardous
with respect to the original listing criteria and that there are no
additional factors which could cause the waste to be hazardous. If our
review had found that the waste remained hazardous, we would have
proposed to deny the petition. We have therefore concluded that the
waste should be delisted.
C. How Will Ormet Manage the Waste If It Is Delisted?
If the petitioned waste is delisted, Ormet must dispose of it in a
Subtitle D landfill licensed or permitted by a State to manage
industrial waste. Ormet 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 considered and 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 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
petitioner to contact the state regulatory authority to establish the
status of its 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 Ormet transports the petitioned waste to or
manages the waste in any state with delisting authorization, Ormet must
obtain a delisting from that state before it can manage the waste as
nonhazardous in the state.
[[Page 43825]]
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
hazardous.
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 does 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?
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 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 Ormet Petition EPA to Delist?
Ormet submitted an ``upfront'' petition in April 1994 to exclude
vitrified spent potliner, K088, generated at its Hannibal Ohio plant,
from the list of hazardous wastes contained in 40 CFR 261.32. K088 is
defined as ``spent potliner from the primary reduction of aluminum.''
In December 1999 Ormet submitted a revised petition for an annual
volume of 8,500 cubic yards of K088 generated under full scale
operation. 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 Ormet's estimate of annual volume of
waste.
B. What Information and Analyses Did Ormet Submit To Support This
Petition?
To support its petition, Ormet submitted (1) descriptions and
schematic diagrams of the aluminum reduction process generating the
K088 and the vitrification system used to treat the K088; (2) analyses
for total and TCLP metals, total and TCLP volatile and semivolatile
organics, total cyanide, total and TCLP fluoride, total sulfides, total
dioxins and furans, oil and grease; pH, and reactivity; (3) analyses
for leachable metals, cyanide, and fluoride, using the TCLP procedure
with neutral and basic extraction fluids.
C. How Is the Petitioned Waste Generated?
Aluminum is produced by the reduction of alumina (aluminum oxide)
in large iron pots. The pot is lined with anthracite coal which serves
as the cathode. Anodes in the center of the bath are constructed of
petroleum coke and a pitch binder. The pot is filled with a mixture of
aluminum oxide, cryolite and aluminum fluoride and a direct current is
passed from the anode to the cathode. The heat generated by the
resistance of the solid mixture causes it to melt and at the surface of
the cathode the molten aluminum oxide is reduced to aluminum. The
molten aluminum is periodically withdrawn from the bottom of the cell
and cast into ingots, billets, or pigs.
In the reducing environment, atmospheric nitrogen reacts with the
carbon of the potliner to form cyanide within the potliner. Over the
life of the cathode, the carbon lining of the pot becomes impregnated
with cryolite, as well as with sodium and fluoride. In addition, the
potliner may also be contaminated with heavy metals. As the cryolite is
absorbed into the cathode, the lining of the pot will crack and heave.
When the lining fails, the molten aluminum can come in contact with the
iron pot. If this happens, the aluminum will pick up impurities from
the iron. Upon failure, the potliner must be replaced. The pot is
removed from service, emptied and cooled, and the spent potliner is
stripped from the steel shell by mechanical means.
Spent potliner from primary aluminum reduction is hazardous waste
K088. This waste was originally listed for complexes of cyanide,
although Land Disposal Restriction treatment standards 40 CFR 268.40
for K088 have been established for cyanide, fluoride, heavy metals, and
PAHs.
Ormet treats the spent potliner generated at the Hannibal plant in
an on-site treatment unit. The treatment unit is a natural gas fired
combustion melting system which vitrifies the spent potliner. The
glass-like VSP fractures into a cullet or frit upon quenching. The
State of Ohio currently allows Ormet to recycle the VSP. The system
also generates a baghouse dust which is mostly sodium fluoride. The
proposed exclusion is for the glass-like VSP only.
D. How Did Ormet Sample and Analyze the Data in This Petition?
In April of 1994, Ormet sought an upfront exclusion for the VSP
based on the results of pilot-scale treatment of the spent potliner.
Ormet collected and analyzed five composite samples each of untreated
spent potliner and VSP during the pilot study. All samples were
analyzed for: total and TCLP metals plus antimony, beryllium, nickel,
thallium, tin, vanadium, and zinc; total volatile and semivolatile
organic compounds; total fluoride; total cyanide; reactivity; pH; and
oil & grease. All untreated spent potliner samples and one sample of
the vitrified spent potliner were also analyzed by TCLP for 10 VOCs and
67
[[Page 43826]]
SVOCs. Two samples of vitrified spent potliner were analyzed for
dioxins and furans.
Four samples of vitrified spent potliner were collected in August
1998 after the full-scale operation was established and were analyzed
for: total antimony, arsenic, barium, beryllium, cadmium, chromium,
lead, mercury, nickel, potassium, selenium, silver, sodium, and
thallium; TCLP arsenic, barium, cadmium, chromium, lead, mercury,
selenium, and silver; total and TCLP VOCs and SVOCs; total fluoride;
total and leachable cyanide; reactivity; pH; and oil & grease. One
sample of vitrified spent potliner collected in August 1998 was
analyzed for dioxins and furans.
To demonstrate stability over a range of pH possible in landfill
leachate, Ormet collected an additional ten samples of VSP in June 1999
to demonstrate that the treated VSP is stable over a range of pH
values.
Ormet demonstrated that the treated VSP is stable over a range of
pH by using the TCLP procedure but substituting: (1) Deionized water
and (2) 0.1 normal sodium hydroxide solution for the extraction fluid
prescribed in the TCLP.
Eight composite samples of VSP were collected in June 1999 and
analyzed for total antimony, arsenic, barium, beryllium, cadmium,
chromium, lead, mercury, nickel, selenium, silver, and thallium; total
SVOCs, total fluoride; total cyanide. These samples were also analyzed
for the above metals plus vanadium, zinc, and fluoride by the TCLP, SW
846 Method 1311, and by the TCLP procedure in which both neutral and an
alkaline extraction fluids were substituted for the extraction fluid
specified in Method 1311. Samples were analyzed for TCLP cyanide using
both neutral and alkaline extraction fluids, and for pH. Five of the
composite samples were also analyzed for TCLP SVOCs.
To quantify the total constituent and extraction fluid
concentrations, Ormet used the following SW-846 Methods: arsenic 6010,
7060; antimony 6010, 7041; barium 6010; beryllium 6010; cadmium 6010;
chromium 6010; lead 6010, 7421; mercury 7471 and 7471A; nickel 6010;
selenium 7740, 7741; silver 6010; thallium 7841; tin 6010; vanadium
6010; zinc 6010; VOCs 8260, 8260B; SVOCs 8270, 8270B; TCLP SVOCs 8270C;
cyanide 9010; sulfides 9030; dioxins and furans 8290; pH 9045; and
reactive cyanide and reactive sulfides Sections 7.3.3.2 and 7.3.4.2 of
SW-846. From ``Methods for Chemical Analysis of Water and Wastes''
Ormet used methods 340.1 and 340.2 for fluoride, method 418.1 for oil
and grease, and method 335.2 for leachable cyanide using TCLP procedure
with deionized water.
E. What Were the Results of Ormet's Analysis?
Table 1 presents the maximum total and leachate concentrations for
detected constituents in VSP. The values reported in the table are the
maximum values detected in any one sample, with the exception of
chromium. Chromium was detected at levels higher than expected during
the pilot study. This was attributed to refractory materials within the
pilot-scale furnace which contained relatively high concentrations of
chromium. A low-chromium refractory was used in the full-scale furnace
and the chromium analytical data from the pilot study were not used.
For inorganic constituents, the maximum reported leachate
concentrations for metals in the treated VSP were well below the
health-based levels of concern used in decision-making for delisting.
No organic constituents were detected except an insignificant
concentration of 2,3,4,6,7,8 hexachloro-dibenzo furan found in just one
sample.
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. Ormet
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 identified 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 and to
evaluate the potential impact of the petitioned waste on human health
and the environment once it is disposed. 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 EPA's Composite Model for leachate migration with
Transformation Products (EPACMTP) 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 and 65 FR
75897, December 5, 2000. The DRAS program is available on the World
Wide Web at http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dras.htm. A
technical support document for the DRAS program is available in the
public docket.
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. We believe that it is inappropriate to evaluate
constituents which are not detected if an appropriate analytical method
was used.
G. What Other Factors Did EPA Consider in Evaluating This Waste?
We also considered the applicability of groundwater monitoring data
during the evaluation of delisting petitions. In this case, we
determined that it would be inappropriate to request groundwater
monitoring data because the waste is not currently being land disposed.
Therefore, we did not request ground water monitoring data from Ormet.
Potential impacts of the petitioned waste via air emission and storm
water run-off are addressed in the DRAS.
H. What Did EPA Conclude About Ormet's Analysis?
After reviewing Ormet's petition, the EPA concludes that (1) no
hazardous constituents are likely to be present above health based
levels of concern in the VSP generated at Ormet's Hannibal, Ohio Plant;
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 well below the U.S.
EPA Region 5 Delisting Program's target level of 1 x 10-6.
The aggregate hazard index for this waste is estimated to be 0.0139,
which is also well below the target of 1.0.
I. What Is EPA's Final Evaluation of This Delisting Petition?
We have reviewed the sampling procedures used by Ormet and have
determined that they satisfy EPA criteria for collecting representative
samples of the VSP. 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,
[[Page 43827]]
propose to grant Ormet an exclusion for the VSP generated at Ormet's
Hannibal, Ohio Plant.
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?
Table 1 summarizes maximum allowable concentrations in an extract
using the DRAS program and the point of exposure (POE) concentrations
of concern in groundwater. Allowable levels are determined only for
constituents which were detected in one or more samples. The allowable
leachate concentrations were derived from either the health-based
calculation within the DRAS program, from SWDA Maximum Contaminant
Level Goals (MCLs), treatment technique, or toxicity characteristic
values, whichever resulted in a lower delisting level. The only
exception was arsenic.
The delisting level for arsenic at the target risk level of 1 x
10-6 is 0.00107 mg/L in a TCLP extract which is well below
the best detection limit achieved by Ormet. 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 groundwater pathway
can be derived from MCLs. If the POE target concentration is set at the
Safe Drinking Water Act (SWDA) Maximum Contaminant Level (MCL), the
maximum allowable waste leachate concentration would be 1.1 mg/L TCLP
arsenic. According to EPA's January 2001 Technical Fact Sheet: Final
Rule for Arsenic in Drinking Water, EPA 815-F-00-015, naturally
occurring levels of arsenic in public drinking water systems can range
from .002 to .01 mg/L. Therefore, some allowance has been exercised in
setting the allowable level for arsenic at a concentration which
corresponds to a cancer risk of 1 x 10-4. This corresponds
to a POE concentration of approximately one tenth of the existing MCL.
Delisting levels for constituents other than arsenic will still be set
at concentrations corresponding to the original target level of 1 x
10-6.
Since the spent potliner is undergoing treatment after generation
and prior to disposal, the applicable LDR treatment standards for K088
must also be met before the VSP can be land disposed. Based on the data
submitted, the vitrified spent potliner does not exceed current LDR
treatment standards as identified in Table 1. Ormet must comply with
all future LDR treatment standards promulgated under 40 CFR 268.40 for
K088.
Table 1.--Constituent Concentrations and DRAS Maximum Allowable Leachate and Point of Exposure Levels
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maximum \1\ observed leachate concentration Maximum
(mg/L TCLP) Maximum Maximum allowable
Maximum \1\ ------------------------------------------------ allowable allowable point of
Constituent observed total leachate concentration exposure
concentration concentration based on LDRs concentration
(mg/kg) acidic neutral alkaline (mg/L TCLP) (mg/kg or m/L (mg/L in
TCLP) groundwater)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Antimony................................ 20 2 0.04 0.04 0.2352 1.15 mg/L TCLP 0.0062
Arsenic................................. 5.1 1 0.008 0.008 0.107 5 mg/L TCLP 0.005
26.1 mg/kg
Barium.................................. 320 0.3 .............. 0.08 0.02 63.5 2 21 mg/L TCLP 2.0 2
Beryllium............................... 15 0.1 0.005 0.005 0.474 2 1.2 2 mg/L 0.004 2
TCLP
Cadmium................................. 0.5 0.1 0.005 0.005 0.1712 0.11 mg/L TCLP 0.0052
Chromium................................ 140 0.2 0.04 0.04 1.762 0.6 mg/L TCLP 0.12
Lead.................................... 30 1 0.2 0.2 53 0.75 mg/L TCLP 0.0152
Mercury................................. 0.25 0.005 0.005 0.005 0.172 0.025 mg/L 0.0022
TCLP
Nickel.................................. 210 0.27 0.08 0.08 32.2 11 mg/L TCLP 0.753
Selenium................................ 1.8 1 0.2 0.2 0.6612 5.7 mg/L TCLP 0.052
Silver.................................. 12 0.4 0.02 0.02 4.38 0.14 mg/L TCLP 0.187
Thallium................................ 0.5 0.05 0.01 0.01 0.12 0.2 mg/L TCLP 0.0022
Tin..................................... 1 0.2 NR NR 257 NA 22.5
Vanadium................................ 74 0.022 0.02 0.02 24.1 1.6 mg/L TCLP 2.63
Zinc.................................... 390 0.31 0.04 0.04 320 4.3 mg/L TCLP 11.27
Cyanide................................. 14 NR 0.01 0.01 4.11 NA mg/L TCLP 0.22
590 mg/kg 30
mg/kg amen.
Fluoride................................ 26,100 6 2.6 2.4 NA NA NA
Sulfide................................. 450 NR NR NR NA NA NA
Acenaphthene............................ 0.170 NR NR NR NR 3.4 mg/kg NA
Anthracene.............................. 0.170 NR NR NR NR 3.4 mg/kg NA
Benz(a)anthracene....................... 0.170 NR NR NR NR 3.4 mg/kg NA
Benzo(a)pyrene.......................... 0.170 NR NR NR NR 3.4 mg/kg NA
Benzo(b)fluoranthene.................... 0.170 NR NR NR NR 6.8 mg/kg NA
[[Page 43828]]
Benzo(k)fluoranthene.................... 0.170 NR NR NR NR 6.8 mg/kg NA
Benzo(g,h,i)perylene.................... 0.170 NR NR NR NR 1.8 mg/kg NA
Chrysene................................ 0.170 NR NR NR NR 3.4 mg/kg NA
Dibenz(a,h)anthracene................... 0.170 NR NR NR NR 8.2 mg/kg NA
Fluoranthene............................ 0.170 NR NR NR NR 3.4 mg/kg NA
Indeno(1,2,3,-c,d)pyrene................ 0.170 NR NR NR NR 3.4 mg/kg NA
Phenanthrene............................ 0.170 NR NR NR NR 5.6 mg/kg NA
Pyrene.................................. 0.170 NR NR NR NR 8.2 mg/kg 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.
NA Not applicable.
NR Analysis not run.
B. How Frequently Must Ormet Test the Waste?
Ormet must demonstrate on a quarterly basis that the constituents
of concern in the petitioned waste do not exceed the levels of concern
in Table 1 above. Ormet must collect two representative samples of the
treated VSP per month and analyze the samples using: (a) the TCLP
method, (b) the TCLP procedure with an extraction fluid of 0.1 Normal
sodium hydroxide solution. Appropriate detection levels and quality
control procedures are required.
C. What Must Ormet Do If the Process Changes?
If Ormet significantly changes either the manufacturing process,
the treatment process, or the chemicals used in the treatment process,
Ormet must manage wastes generated after the process change as
hazardous waste until Ormet has received written approval from EPA.
Ormet may not handle the VSP generated from the new process under this
exclusion until it has demonstrated to 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.
D. What Data Must Ormet Submit?
Ormet 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. Ormet must compile,
summarize, and maintain on site for a minimum of five years records of
operating conditions and analytical data. Ormet 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 Ormet Fails To Meet the Conditions of the Exclusion?
If Ormet 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, Ormet must notify the Agency
within ten days. The exclusion will be suspended and the waste managed
as hazardous until Ormet has received written approval for the
exclusion from the Agency. Ormet 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, or otherwise not met.
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, if promulgated, would 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 rule making 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.
[[Page 43829]]
VII. Paperwork Reduction Act
Information collection and record-keeping requirements associated
with this proposed rule have been approved by the OMB under the
provisions of the Paperwork Reduction Act of 1980 (Public Law 96-511,
44 U.S.C. 3501 et seq.) and have been assigned OMB Control Number 2050-
0053.
VIII. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA), Public Law 104-4, which was signed into law on March 22, 1995,
EPA generally must prepare a written statement for rules with federal
mandates that may result in estimated costs to state, local, and tribal
governments in the aggregate, or to the private sector, of $100 million
or more in any one year.
When such a statement is required for EPA rules, under section 205
of the UMRA EPA must identify and consider alternatives, including the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. EPA must select that alternative,
unless the Administrator explains in the final rule why it was not
selected or it is inconsistent with law.
Before EPA establishes regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, 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 13045
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.
X. Executive Order 13175
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
The effect of this rule would be limited to one facility. Thus,
Executive Order 13175 does not apply to this rule.
In the spirit of Executive Order 13175, and consistent with EPA
policy to promote communications between EPA and tribal governments,
EPA specifically solicits additional comment on this proposed rule from
tribal officials.
XI. 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.
XII. Executive Order 13132--Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999) requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that impose substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. The EPA also may not issue a
regulation that has federalism implications and that preempts State law
unless the Agency consults with State and local officials early in the
process of developing the proposed regulation.
This action does not have federalism implications. It will not have
a substantial direct effect on States, on the relationship between the
national government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132, because it affects only one facility.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA
[[Page 43830]]
specifically solicits comment on this proposed rule from State and
local officials.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, and Reporting
and recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: August 1, 2001.
Robert Springer,
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.
2. In Table 2 of appendix IX of part 261 it is proposed to add the
following waste stream in alphabetical order by facility to read as
follows:
Appendix IX to part 261--Wastes Excluded Under Secs. 260.20 and
260.22.
Table 2.--Wastes Excluded From Specific Sources
------------------------------------------------------------------------
Facility Address and waste description
------------------------------------------------------------------------
* * * *
* * *
Ormet Primary Aluminum Vitrified spent potliner (VSP),
Corporation.--Hannibal, Ohio. K088, that is generated by Ormet
Primary Aluminum Corporation in
Hannibal, Ohio at a maximum annual
rate of 8,500 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 any of the extracts specified in
Paragraph (2) may not exceed the
following levels (mg/L): Antimony--
0.235; Arsenic--0.107; Barium--
63.5; Beryllium--0.474; Cadmium--
0.171; Chromium (total)--1.76;
Lead--5; Mercury--0.17; Nickel--
32.2; Selenium--0.661; Silver--
4.38; Thallium--0.1; Tin--257;
Vanadium--24.1; Zinc--320; Cyanide--
4.11. (B) LDR treatment standards
for K088 must also be met before
the VSP can be land disposed. Ormet
must comply with any future LDR
treatment standards promulgated
under 40 CFR 268.40 for K088.
2. Verification Testing: (A) On a
quarterly basis, Ormet must analyze
two samples of the waste using (a)
the TCLP method, and (b) the TCLP
procedure with an extraction fluid
of 0.1 Normal sodium hydroxide
solution. The constituent
concentrations measured must be
less than the delisting levels
established in Paragraph (1). Ormet
must also comply with LDR treatment
standards in accordance with 40 CFR
268.40. (B) If the quarterly
testing of the waste does not meet
the delisting levels set forth in
paragraph (1), Ormet must notify
the Agency in writing in accordance
with Paragraph (5). The exclusion
will be suspended and the waste
managed as hazardous until Ormet
has received written approval for
the exclusion from the Agency.
Ormet may provide sampling results
that support the continuation of
the delisting exclusion.
3. Changes in Operating Conditions:
If Ormet significantly changes the
manufacturing process or chemicals
used in the manufacturing process
or significantly changes the
treatment process or the chemicals
used in the treatment process,
Ormet must notify the EPA of the
changes in writing. Ormet must
handle wastes generated after the
process change as hazardous until
Ormet 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 Ormet has received
written approval from EPA.
4. Data Submittals: Ormet 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. Ormet
must compile, summarize, and
maintain on site for a minimum of
five years records of operating
conditions and analytical data.
Ormet 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, Ormet possesses or
is otherwise made aware of any data
(including but not limited to
leachate data or groundwater
monitoring data) 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 point of exposure
groundwater levels referenced by
the model, then Ormet 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.
[[Page 43831]]
(c) If the Regional Administrator
determines that the reported
information does require Agency
action, the Regional Administrator
will notify Ormet 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 Ormet
with an opportunity to present
information as to why the proposed
Agency action is not necessary or
to suggest an alternative action.
Ormet shall have 30 days from the
date of the Regional
Administrator's notice to present
the information.
(d) If after 30 days Ormet 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.
* * * *
* * *
------------------------------------------------------------------------
[FR Doc. 01-21045 Filed 8-20-01; 8:45 am]
BILLING CODE 6560-50-P