[Federal Register Volume 67, Number 162 (Wednesday, August 21, 2002)]
[Rules and Regulations]
[Pages 54124-54132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21287]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FRL-7264-1]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Final Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA or Agency) today is
granting a petition submitted by the United States Department of Energy
Savannah River Operations Office (DOE-SR) to exclude (or ``delist'')
certain hazardous wastes from the lists of hazardous wastes under the
Resource Conservation and Recovery Act (RCRA). DOE-SR generated the
petitioned waste by treating wastes from various activities at the
Savannah River Site (SRS). The petitioned waste meets the definitions
of listed RCRA hazardous wastes F006 and F028. DOE-SR petitioned EPA to
grant a one-time, generator-specific delisting for its F006 and F028
waste, because DOE-SR believes that its waste does not meet the
criteria for which theses types of wastes were listed. The waste is a
radioactive mixed waste (RMW) because it is both a RCRA hazardous waste
and a radioactive waste. EPA reviewed all of the waste-specific
information provided by DOE-SR, performed calculations, and determined
that the waste, which has a low level of radioactivity, could be
disposed in a landfill for low-level radioactive waste without harming
human health and the environment. The petition is for a one-time
delisting, because the petitioned waste has been generated, will be
completely disposed of at one time, and will not be generated again.
Today's final rule grants DOE-SR's petition to delist its F006 and F028
waste. No public comments on the proposed rule were received. Today's
final action means that DOE-SR's petitioned waste will no longer be
classified as F006 and F028, and will not be subject to regulation as a
hazardous waste under Subtitle C of RCRA, provided that it is disposed
in a low-level radioactive waste landfill, in accordance with the
Atomic Energy Act. The waste will still be subject to the Atomic Energy
Act and local, State, and Federal regulations for low-level radioactive
solid wastes that are not RCRA hazardous wastes.
EFFECTIVE DATE: This rule is effective on August 21, 2002.
ADDRESSES: The RCRA regulatory docket for this final rule is located at
the EPA Library, U.S. Environmental Protection Agency, Region 4, Sam
Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia
30303, and is available for viewing from 9 a.m. to 4 p.m., Monday
through Friday, excluding Federal holidays.
The reference number for this docket is R4-01-02-DOESRSF. 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.
For copying at the South Carolina Department of Health and
Environmental Control (SCDHEC), please see below.
[[Page 54125]]
FOR FURTHER INFORMATION CONTACT: For general and technical information
concerning this final rule, please contact Judy Sophianopoulos, RCRA
Enforcement and Compliance Branch (Mail Code 4WD-RCRA), U.S.
Environmental Protection Agency, Region 4, Sam Nunn Atlanta Federal
Center, 61 Forsyth Street, SW., 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. Questions
may also be e-mailed to Ms. Sophianopoulos at
[email protected]. You may also contact Myra C. Reece,
Director, South Carolina Department of Health and Environmental
Control, Lower Savannah District Environmental Quality Control, 218
Beaufort Street, NE., Aiken, South Carolina 29801, Phone: (803) 641-
7670. If you wish to copy documents at SCDHEC, Lower Savannah District
Environmental Quality Control, please contact Ms. Reece for copying
procedures and costs.
SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed
in the following outline:
I. Background
A. What Is a Delisting Petition?
B. What Laws and Regulations Give EPA the Authority to Delist
Wastes?
C. What is the History of this Rulemaking?
II. Summary of Delisting Petition Submitted by the United States
Department of Energy Savannah River Operations Office (DOE-SR)
A. What Waste Did DOE-SR Petition EPA to Delist?
B. What Information Did DOE-SR Submit to Support This Petition?
III. EPA's Evaluation and Final Rule
A. What Decision Is EPA Finalizing and Why?
B. What Are the Terms of This Exclusion?
C. When Is the Delisting Effective?
D. How Does This Action Affect the States?
IV. Public Comments Received on the Proposed Exclusion
A. Who Submitted Comments on the Proposed Rule?
B. Comments and Responses From EPA
V. Analytical and Regulatory Requirements
A. Executive Order 12866: Regulatory Planning and Review
B. What Economic and Equity Analyses Were Completed in Support
of the Proposed Delisting for DOE-SR's Petitioned Waste: Residue
from Treating M-Area Waste by Vitrification and Cementitious
Treatability Samples?
C. What Substantive Comments Were Received on the Cost/Economic
Aspects of the Proposed Delisting for DOE-SR's Petitioned Waste:
Residue from Treating M-Area Waste by Vitrification and Cementitious
Treatability Samples?
D. What Are the Potential Costs and Benefits of Today's Final
Rule?
E. What Consideration Was Given to Small Entities Under the
Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601
et seq.?
F. Was the Unfunded Mandates Reform Act Considered in this Final
Rule?
G. Were Equity Issues and Children's Health Considered in this
Final Rule?
1. Executive Order 12898: Environmental Justice
2. Executive Order 13045: ``Protection of Children from
Environmental Health Risks and Safety Risks''
H. What Consideration Was Given to Tribal Governments?
I. Were Federalism Implications Considered in Today's Final
Rule?
J. Were Energy Impacts Considered?
VI. Paperwork Reduction Act
VII. National Technology Transfer and Advancement Act of 1995
VIII. The Congressional Review Act (5 U.S.C. 801 et seq., as Added
by the Small Business Regulatory Enforcement Fairness Act of 1996)
I. Background
A. What Is a Delisting Petition?
A delisting petition is a request made by a hazardous waste
generator to exclude one or more of his/her wastes from the lists of
RCRA-regulated hazardous wastes in Secs. 261.31, 261.32, and 261.33 of
Title 40 of the Code of Federal Regulations (40 CFR 261.31, 261.32, and
261.33). The regulatory requirements for a delisting petition are in 40
CFR 260.20 and 260.22. EPA, Region 6 has prepared a guidance manual,
Region 6 Guidance Manual for the Petitioner,\1\ which is recommended by
EPA Headquarters in Washington, DC and all EPA Regions.
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\1\ This manual may be down-loaded from Region 6's Web site at
the following URL address: http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dlistpdf.htm.
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B. 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). Discarded commercial chemical product wastes which
meet the listing criteria are listed in Sec. 261.33(e) and (f).
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, Secs. 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 Sec. 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 Sec. 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 40 CFR 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
[[Page 54126]]
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. On May 16,
2001, EPA amended the mixture and derived-from rules for certain types
of wastes (66 FR 27218 and 66 FR 27266). The mixture and derived-from
rules are codified in 40 CFR 261.3, paragraphs (a)(2)(iv) and
(c)(2)(i). EPA plans to address all 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 Secs. 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).
C. What is the History of This Rulemaking?
The United States Department of Energy Savannah River Operations
Office (DOE-SR), Aiken, South Carolina (DOE-SR), is seeking a delisting
for vitrified radioactive mixed waste (RMW) generated at the Savannah
River Site (SRS) in Aiken, South Carolina. The petitioned waste meets
the listing definitions of F006 and F028 in Sec. 261.31\2\ and was
generated by vitrification treatment of F006 and F027\3\ waste from the
SRS--Area where nuclear reactor components were produced. The
petitioned waste also includes a small volume of non-vitrified waste
which consists of cementitious treatability samples (EPA Hazardous
Waste No. F006).
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\2\ F006: ``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.''
F028: ``Residues resulting from the incineration or thermal
treatment of soil contaminated with EPA Hazardous Waste Nos. F020,
F021, F023, F026, and F027.''
\3\ F027: ``Discarded unused formulations containing tri-,
tetra-, or pentachlorophenol or discarded unused formulations
containing compounds derived from these chlorophenols. (This listing
does not include formulations containing Hexachlorophene synthesized
from prepurified 2,4,5-tri-chlorophenol as the sole component.)''
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The hazardous constituents of concern \4\ for which F006 was listed
are cadmium, hexavalent chromium, nickel, and cyanide (complexed). F028
was listed for tetra-, penta-, and hexachlorodibenzo-p-dioxins; tetra-,
penta-, and hexachlorodibenzofurans; tri-, tetra-, and
pentachlorophenols and their chlorophenoxy derivative acids, esters,
ethers, amine and other salts. DOE-SR petitioned the EPA to exclude its
F028 waste (generated from thermal treatment of F027 waste) and F006
waste because DOE-SR believes that the petitioned waste does not meet
the criteria for which the waste was listed. DOE-SR claims that its
F006 and F028 waste will not be hazardous because the constituents of
concern for which F006 and F028 are listed are either not present or
present only at such low concentrations that the waste does not meet
the criteria in Sec. 261.11(a)(3) for listing a waste as hazardous.
DOE-SR also believes that this waste will not be hazardous for any
other reason (i.e., there will be no additional constituents or factors
that could cause the waste to be hazardous \5\). 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).
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\4\ The hazardous constituents of concern for every listed waste
are in Appendix VII of Part 261--Basis for Listing Hazardous Waste.
\5\ Note that the waste remains subject to the Atomic Energy Act
because of its radioactivity.
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DOE-SR petitioned EPA, Region 4, in September 1996 and submitted
revised petitions in September 1998 and September 2000, to exclude this
F006 and F028 waste, on a one-time, generator-specific basis, from the
lists of hazardous wastes in 40 CFR part 261, subpart D.
As a result of the EPA's evaluation of DOE-SR's petition, the
Agency proposed to grant a delisting to DOE-SR on March 15, 2002. See
67 FR 11639-11651, March 15, 2002 for details. EPA received no public
comments on the proposed rule and today's rulemaking finalizes the
proposed decision to grant DOE-SR's petition for delisting.
II. Summary of Delisting Petition Submitted by the United States
Department of Energy Savannah River Operations Office (DOE-SR)
A. What Waste Did DOE-SR Petition EPA To Delist?
DOE-SR petitioned EPA, Region 4, in September 1996 and submitted
revised petitions in September 1998 and September 2000, to exclude 538
cubic yards of vitrified F006 and F028 waste and 0.12 cubic yards of
cementitious treatability sample F006 waste, on a one-time, generator-
specific basis, from the lists of hazardous wastes in 40 CFR part 261,
subpart D. DOE-SR treated ten waste streams generated in the Savannah
River Site M-Area from 1983 through 1999, by vitrification. The
treatment residue of all these streams is the 538 cubic yards of
petitioned waste. The 0.12 cubic yards of petitioned waste comes from
treatability studies of cementing F006 waste, and is referred to as
cementitious treatability samples.
B. What Information Did DOE-SR Submit To Support This Petition?
In support of its petition, DOE-SR submitted: (1) Descriptions \6\
of the waste streams that contributed to the petitioned waste, the
areas where the contributing waste streams were generated, and the
vitrification treatment process that generated the petitioned waste;
(2) Material Safety Data Sheets (MSDSs) for all chemicals used in
processes that generated the waste streams from which the petitioned
waste was derived and the vitrification process that generated the
petitioned waste; (3) the total volume of petitioned waste generated;
(4) results of analysis of untreated waste and the petitioned waste for
all constituents in appendix VIII of 40 CFR part 261 or appendix IX of
part 264; (5) results of the analysis of leachate obtained by means of
the Toxicity Characteristic Leaching Procedure ((TCLP), SW-846 Method
1311), from the petitioned waste and historical results obtained by the
Extraction Procedure Toxicity leaching method ((EPTox), SW-846 Method
1310); (6) results of the determinations for the hazardous
characteristics of ignitability, corrosivity, and reactivity, in these
wastes; and (7) results of the analysis of the petitioned waste by
means of the Multiple Extraction Procedure (MEP), SW-846 Method
1320\7\.
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\6\ Detailed descriptions may be found in the DOE-SR's Approved
Site Treatment Plan (1996), developed pursuant to the Federal
Facility Compliance Act of 1992.
\7\ ``SW-846'' means EPAs Publication SW-846, ``Test Methods for
Evaluating Solid Waste, Physical/Chemical Methods.'' Methods in this
publication are referred to in today's final rule as ``SW-846,''
followed by the appropriate method number.
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[[Page 54127]]
Please see the proposed rule, 67 FR 11639-11651, March 15, 2002 for
details on DOE-SR's analytical data, vitrification process, and
generation process for the petitioned waste. A summary of analytical
data was presented in Preamble Section II, Table 1B of the proposed
rule (67 FR 11639-11651, March 15, 2002). EPA does not generally verify
submitted test data before proposing delisting decisions. The sworn
affidavit submitted with this petition binds the petitioner to present
truthful and accurate results. The Agency, however, has maintained a
spot-check sampling and analysis program to verify the representative
nature of data for some percentage of the submitted petitions. A spot-
check visit to a selected facility may be initiated before or after
granting a delisting. Section 3007 of RCRA gives EPA the authority to
conduct inspections to determine if a delisted waste is meeting the
delisting conditions.
III. EPA's Evaluation and Final Rule
A. What Decision Is EPA Finalizing and Why?
In today's final rule, EPA is finalizing the delisting exactly as
proposed in 67 FR 11639-11651, March 15, 2002. Appendix IX, Table 1 of
40 CFR part 261 is amended as proposed (67 FR 11650-11651). Table 1
below, which is a reproduction of Table 2 of the proposed rule (67 FR
11645-11646), summarizes delisting and risk levels calculated by DRAS
for DOE-SR's petitioned waste.
Table 1: Delisting and Risk Levels Calculated by DRAS With EPACMTP Model for DOE-SR's Petitioned Waste
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DRAS-calculated
DRAS-calculated hazard quotient for
Constituent Delisting level DAF risk for maximum maximum
(mg/l TCLP) concentration of concentration of non-
carcinogen in waste carcinogen in waste
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Arsenic........................ 0.0649............ 1,330 3.47 x 10-\7\ ....................
Barium......................... * 5,070; 3,860 1,930 ................... 5.66 x 10-\6\
Based on MCL.
Beryllium (Carcinogenic Effect) Not Enough 7.21 x 10\3\ 2.13 x 10-\11\ ....................
Information:
Effect Based on
Inhalation 28.8
Based on MCL.
Beryllium (Non-Carcinogenic 541; 28.8 Based on 7.21 x 10\3\ ................... 2.16 x 10-\6\
Effect). MCL
Cadmium (Carcinogenic Effect).. Not Enough 2,080 4.17 x 10-\15\ ....................
Information:
Effect Based on
Inhalation; 10.4
Based on MCL.
Cadmium (Non-Carcinogenic * 39; 10.4 Based 2,080 ................... 1.15 x 10-\4\
Effect). on MCL
Chromium (Hexavalent; Not Enough 1,070 5.30 x 10-\12\ ....................
Carcinogenic Effect). Information:
Effect Based on
Inhalation; 107
Based on MCL.
Chromium (Not Hexavalent; Non- * 1.50 x 10\7\; 2.67 x 10\5\ ................... 5.48 x 10-\7\
Carcinogenic Effect). 2.67 x 10\4\
Based on MCL.
Lead........................... * 5,200........... 3.46 x 10\5\ ................... (**)
Nickel......................... 1,960............. 2,610 ................... 5.64 x 10-\4\
Silver......................... * 266............. 1420 ................... 3.71 x 10-\5\
Fluoride....................... Not Enough 1,250 ................... (***)
Information;
4,990 Based on
MCL.
Acetonitrile................... 847............... 1,320 ................... 6.00 x 10-\7\
Total Hazard Quotient for All .................. ................ ................... 1.09 x 10-\3\
Waste Constituents.
Total Carcinogenic Risk for the .................. ................ 3.48 x 10-\7\ ....................
Waste (due to Arsenic,
Beryllium, Cadmium, and
Hexavalent Chromium).
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* These levels are all greater than the Toxicity Characteristic (TC) regulatory level in 40 CFR 261.24. A waste
cannot be delisted if it exhibits a hazardous characteristic; therefore, the delisting level for each of these
constituents could not be greater than the TC level of 100 for Barium; 1.0 for Cadmium; 5.0 for Chromium; 5.0
for Lead; and 5.0 for Silver. MCL = Maximum Contaminant Level of National Primary Drinking Water Standards.
** Not Enough Information: There is No Reference Dose for Lead.
*** Not Enough Information.
After reviewing the analytical data and information on processes
and vitrification feed materials that DOE-SR submitted in the delisting
petition, EPA developed a list of constituents of concern and
calculated delisting levels and risks using Region 6 Delisting Risk
Assessment Software (DRAS) and Dilution Attenuation Factors (DAFs) from
the EPA Composite Model for Landfills with Transformation Products
(EPACMTP) (67 FR 11639-11651, March 15, 2002). EPA requested public
comment on this proposed method of calculating delisting levels and
risks for DOE-SR's petitioned waste. No public comments were received.
EPA also requested comment on three additional methods of
evaluating DOE-SR's delisting petition and determining delisting
levels: (1) Use of the Multiple Extraction Procedure (MEP), SW-846
Method 1320, to evaluate the long-term resistance of the waste to
leaching in a landfill; (2) comparing total concentrations of
constituents in the waste to the results obtained by DRAS for total
concentrations; and (3) comparing concentrations of constituents in the
waste and waste leachate to the Land Disposal Restrictions (LDR)
Universal Treatment Standards. (1) The MEP results for DOE-SR's
petitioned waste indicated long-term resistance to leaching in a
landfill. For example, less than 1% of
[[Page 54128]]
the available nickel would be expected to leach from the waste in more
than 100 years (67 FR 11646). (2) Total concentrations of constituents
in the petitioned waste were several orders of magnitude below results
obtained by DRAS for total concentrations. The maximum reported total
concentrations for DOE-SR's petitioned waste were all below the
following levels (mg/kg): Arsenic--10; Barium--200; Beryllium--10;
Cadmium--10; Chromium--500; Lead--200; Nickel--10,000; Silver--20;
Acetonitrile--1.0, and Fluoride--1.0. (3) The petitioned waste meets
the LDR Universal Treatment Standards, as required by the Federal
Facility Compliance Agreement. No public comments were received.
B. What Are the Terms of This Exclusion?
In today's final rule, EPA is excluding DOE-SR's petitioned waste
from being listed as F006 and F028, based on descriptions of waste
management and waste history, evaluation of the results of waste sample
analysis, and on the requirement that DOE-SR's petitioned waste must be
disposed in accordance with the Atomic Energy Act. This exclusion is
valid only if the petitioner disposes of the waste in a low-level
radioactive waste landfill in accordance with the Atomic Energy Act, as
required by the amended Table 1 of appendix IX of 40 CFR part 261.
Under these conditions, the petitioned waste is not 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 is relieved from Subtitle C jurisdiction, the waste
remains a solid waste under RCRA and a low-level radioactive waste
under the Atomic Energy Act. As such, the waste must be handled in
accordance with all applicable Federal, State, and local solid waste
management and low-level radioactive waste regulations. Pursuant to
RCRA section 3007, EPA may also sample and analyze the waste to verify
reported analytical data.
C. When Is the Delisting Effective?
This final rule is effective on August 21, 2002. 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 final rule reduces 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).
D. How Does This Action Affect the States?
This final rule is 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 final exclusion does not apply in
those authorized States. If the petitioned waste will be transported to
any State with delisting authorization, SRS must obtain delisting
authorization from that State before the waste may be managed as
nonhazardous in that State.
Under section 3006 of RCRA, EPA may authorize qualified States to
administer the RCRA hazardous waste program within the State. See 40
CFR part 271 for the overall standards and requirements for
authorization. Following authorization, the State requirements
authorized by EPA apply in lieu of equivalent Federal requirements and
become Federally enforceable as requirements of RCRA. EPA maintains
independent authority to bring enforcement actions under RCRA sections
3007, 3008, 3013, and 7003. Authorized States also have independent
authority to bring enforcement actions under State law. A State may
receive authorization by following the approval process described under
40 CFR part 271.
After a State receives initial authorization, new Federal
requirements promulgated under RCRA authority existing prior to the
1984 Hazardous and Solid Waste Amendments (HSWA) do not apply in that
State until the State adopts and receives authorization for equivalent
State requirements. The State must adopt such requirements to maintain
authorization.
In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), new
Federal requirements and prohibitions imposed pursuant to HSWA
provisions take effect in authorized States at the same time that they
take effect in unauthorized States. Although authorized States are
still required to update their hazardous waste programs to remain
equivalent to the Federal program, EPA carries out HSWA requirements
and prohibitions in authorized States, including the issuance of new
permits implementing those requirements, until EPA authorizes the State
to do so. Authorized States are required to modify their programs only
when EPA promulgates Federal requirements that are more stringent or
broader in scope than existing Federal requirements. RCRA section 3009
allows the States to impose standards more stringent than those in the
Federal program. See also 40 CFR 271.1(i). Therefore, authorized States
are not required to adopt Federal regulations, both HSWA and non-HSWA,
that are considered less stringent.
Today's final rule is promulgated pursuant to HSWA authority, and
contains provisions that are less stringent than the current Federal
program. The final exclusion for DOE-SR's petitioned waste would be
less stringent. Consequently, States would not be required to adopt
this final exclusion as a condition of authorization of their hazardous
waste programs.
IV. Public Comments Received on the Proposed Exclusion
A. Who Submitted Comments on the Proposed Rule?
No one submitted comments on the proposed rule to EPA.
B. Comments and Responses From EPA
EPA did not receive any comments.
V. Analytical and Regulatory Requirements
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, EPA must determine whether a
regulatory action is significant and, therefore, subject to
comprehensive review by the Office of Management and Budget (OMB), and
the other provisions of the Executive Order. A significant regulatory
action is defined by the Order as one that may:
[[Page 54129]]
--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;
--Create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency;
--Materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or rights and obligations or recipients thereof;
or
--Raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in Executive Order
12866.
EPA has determined that today's final rule is not a significant
regulatory action as defined by Executive Order 12866 and is,
therefore, not subject to OMB comprehensive review and the other
provisions of the Executive Order.
B. What Economic and Equity Analyses Were Completed in Support of the
Proposed Delisting for DOE-SR's Petitioned Waste: Residue From Treating
M-Area Waste by Vitrification and Cementitious Treatability Samples?
No economic and equity analyses were required in support of the
March 15, 2002 proposed rule. The proposed rule applies only to a one-
time generated waste at a single facility. Therefore the proposal would
have had no generalized effect on industrial compliance costs and would
have reduced compliance costs for the single facility, DOE-SR Savannah
River Site.
C. What Substantive Comments Were Received on the Cost/Economic Aspects
of the Proposed Delisting for DOE-SR's Petitioned Waste: Residue From
Treating M-Area Waste by Vitrification and Cementitious Treatability
Samples?
EPA received no public comments on the proposed rule to delist DO-
ESR's petitioned waste.
D. What Are the Potential Costs and Benefits of Today's Final Rule?
The value of any regulatory action is traditionally measured by the
net change in social welfare that it generates. All other factors being
equal, a rule that generates positive net welfare would be advantageous
to society, while a rule that results in negative net welfare to
society should be avoided.
Today's final rule applies to a one-time generated waste at a
single facility. Therefore, EPA has determined that the rule is not
expected to have any generalized economic, health, or environmental
effects on society.
E. What Consideration Was Given to Small Entities Under the Regulatory
Flexibility Act (RFA), as Amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et. seq.?
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedures Act or any other statute, unless the agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions. For purposes
of assessing the impacts of today's final rule on small entities, a
small entity is defined either by the number of employees or by the
annual dollar amount of sales/revenues. The level at which an entity is
considered small is determined for each North American Industrial
Classification System (NAICS) code by the Small Business Administration
(SBA).
EPA has examined the potential effects today's final rule may have
on small entities, as required by the RFA/Small Business Regulatory
Enforcement Fairness Act (SBREFA). Today's final rule affects a one-
time generated waste at a single facility, DOE-SR Savannah River Site.
Therefore, EPA has determined and certifies that this rule will not
have a significant economic impact on a substantial number of small
entities.
F. Was the Unfunded Mandates Reform Act Considered in This Final Rule?
Executive Order 12875, ``Enhancing the Intergovernmental
Partnership'' (October 26, 1993), called on federal agencies to provide
a statement supporting the need to issue any regulation containing an
unfunded federal mandate and describing prior consultation with
representatives of affected state, local, and tribal governments.
Signed into law on March 22, 1995, the Unfunded Mandates Reform Act
(UMRA) supersedes Executive Order 12875, reiterating the previously
established directives while also imposing additional requirements for
federal agencies issuing any regulation containing an unfunded mandate.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
single year. Before promulgating an EPA rule for which a written
statement is needed, section 205 of the UMRA generally requires EPA to
identify and consider a reasonable number of regulatory alternatives
and adopt the least costly, most cost-effective or least burdensome
alternative that achieves the objectives of the rule. The provisions of
section 205 do not apply when they are inconsistent with applicable
law. Moreover, section 205 allows EPA to adopt an alternative other
than the least costly, most cost-effective or least burdensome
alternative if the Administrator publishes with the final rule an
explanation why that alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, the Agency must develop a small government agency plan, as
required under section 203 of UMRA. This plan must provide for
notifying potentially affected small governments, enabling officials of
affected small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
Today's final rule is not subject to the requirements of sections
202 and 205 of UMRA. Today's final rule will not result in $100 million
or more in incremental expenditures. The aggregate annualized
incremental social costs for today's final rule are projected to be
near zero. Furthermore, today's final rule is not subject to the
requirements of section 203 of UMRA. Section 203 requires agencies to
develop a small government Agency plan before establishing any
regulatory requirements that may significantly or uniquely affect small
governments, including tribal governments. EPA has determined that this
final rule will not significantly or uniquely affect small governments.
G. Were Equity Issues and Children's Health Considered in This Final
Rule?
By applicable executive order, we are required to consider the
impacts of today's rule with regard to environmental justice and
children's health.
[[Page 54130]]
1. Executive Order 12898: Environmental Justice
Executive Order 12898, ``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Population'' (February
11, 1994), is designed to address the environmental and human health
conditions of minority and low-income populations. EPA is committed to
addressing environmental justice concerns and has assumed a leadership
role in environmental justice initiatives to enhance environmental
quality for all citizens of the United States. The Agency's goals are
to ensure that no segment of the population, regardless of race, color,
national origin, income, or net worth bears disproportionately high and
adverse human health and environmental impacts as a result of EPA's
policies, programs, and activities. In response to Executive Order
12898, and to concerns voiced by many groups outside the Agency, EPA's
Office of Solid Waste and Emergency Response (OSWER) formed an
Environmental Justice Task Force to analyze the array of environmental
justice issues specific to waste programs and to develop an overall
strategy to identify and address these issues (OSWER Directive No.
9200.3-17). Today's final rule applies to a one-time generated waste at
a single facility. We have no data indicating that today's final rule
would result in disproportionately negative impacts on minority or low
income communities.
2. Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks''
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have 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. Today's final rule is not
subject to the Executive Order because it is not economically
significant, as defined in Executive Order 12866.''
H. What Consideration Was Given to Tribal Governments?
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.''
Today's final 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 the Order. Today's final
rule will not significantly or uniquely affect the communities of
Indian tribal governments, nor impose substantial direct compliance
costs on them.
I. Were Federalism Implications Considered in Today's Final
Determination?
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'' are 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.''
Today's final rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in the Order. Thus, Executive Order 13132 does not apply
to this final rule.
J. Were Energy Impacts Considered?
Executive Order 13211, ``Actions Concerning Regulations That Affect
Energy Supply, Distribution, or Use'' (May 18, 2001), addresses the
need for regulatory actions to more fully consider the potential energy
impacts of the proposed rule and resulting actions. Under the Order,
agencies are required to prepare a Statement of Energy Effects when a
regulatory action may have significant adverse effects on energy
supply, distribution, or use, including impacts on price and foreign
supplies. Additionally, the requirements obligate agencies to consider
reasonable alternatives to regulatory actions with adverse effects and
the impacts the alternatives might have upon energy supply,
distribution, or use.
Today's final rule applies to a one-time generated waste at a
single facility and is not likely to have any significant adverse
impact on factors affecting energy supply. EPA believes that Executive
Order 13211 is not relevant to this action.
VI. Paperwork Reduction Act
This final determination does not impose an information collection
burden under the provisions of the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). Because there are no paperwork requirements as
part of this final rule, EPA is not required to prepare an Information
Collection Request (ICR) in support of today's action.
VII. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 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 final rule involves evaluation of environmental monitoring or
measurement. Consistent with the Agency's Performance Based Measurement
System (``PBMS''), EPA proposed not to require the use of specific,
prescribed analytical methods, except when required by regulation in 40
CFR parts 260 through 270. Therefore, today's final rule allows the use
of any method that meets the prescribed performance criteria. The
[[Page 54131]]
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. Measurements were completed by the facility prior to
publication of the proposed rule and EPA evaluated the data before
publishing the proposed rule and promulgating today's final rule.
VIII. The Congressional Review Act (5 U.S.C. 801 et seq., as Added
by the Small Business Regulatory Enforcement Fairness Act of 1996)
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States.
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. 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). A ``major rule'' cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will become effective on the date of publication as a
final rule 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: August 8, 2002.
Jewell A. Harper,
Acting Director, Waste Management Division.
For the reasons set out in the preamble, 40 CFR part 261 is amended
as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
2. In Table 1 of appendix IX, part 261 add the following
wastestream in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Wastes Excluded Under Secs. 260.20 and
260.22.
Table 1.--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
Savannah River Site (SRS)................. Aiken, South Carolina..................... Vitrified waste (EPA
Hazardous Waste Nos.
F006 and F028) that the
United States
Department of Energy
Savannah River
Operations Office (DOE-
SR) generated by
treating the following
waste streams from the
M-Area of the Savannah
River Site (SRS) in
Aiken, South Carolina,
as designated in the
SRS Site Treatment
Plan: W-004, Plating
Line Sludge from
Supernate Treatment; W-
995, Mark 15 Filter
Cake; W-029, Sludge
Treatability Samples
(glass and
cementitious); W-031,
Uranium/Chromium
Solution; W-037, High
Nickel Plating Line
Sludge; W-038, Plating
Line Sump Material; W-
039, Nickel Plating
Line Solution; W-048,
Soils from Spill
Remediation and
Sampling Programs; W-
054, Uranium/Lead
Solution; W-082, Soils
from Chemicals, Metals,
and Pesticides Pits
Excavation; and Dilute
Effluent Treatment
Facility (DETF)
Filtercake (no Site
Treatment Plan code).
This is a one-time
exclusion for 538 cubic
yards of waste
(hereinafter referred
to as ``DOE-SR
Vitrified Waste'') that
was generated from 1996
through 1999 and 0.12
cubic yard of
cementitious
treatability samples
(hereinafter referred
to as ``CTS'')
generated from 1988
through 1991 (EPA
Hazardous Waste No.
F006). The one-time
exclusion for these
wastes is contingent on
their being disposed in
a low-level radioactive
waste landfill, in
accordance with the
Atomic Energy Act,
after [insert date of
final rule.] DOE-SR has
demonstrated that
concentrations of toxic
constituents in the DOE-
SR Vitrified Waste and
CTS do not exceed the
following levels:
(1) TCLP
Concentrations: All
leachable
concentrations for
these metals did not
exceed the Land
Disposal
Restrictions (LDR)
Universal Treatment
Standards (UTS): (mg/
l TCLP): Arsenic--
5.0; Barium--21;
Beryllium--1.22;
Cadmium--0.11;
Chromium--0.60;
Lead--0.75; Nickel--
11; and Silver--
0.14. In addition,
none of the metals
in the DOE-SR
Vitrified Waste
exceeded the
allowable delisting
levels of the EPA,
Region 6 Delisting
Risk Assessment
Software (DRAS): (mg/
l TCLP): Arsenic--
0.0649; Barium--
100.0; Beryllium--
0.40; Cadmium--1.0;
Chromium--5.0; Lead--
5.0; Nickel--10.0;
and Silver--5.0.
These metal
concentrations were
measured in the
waste leachate
obtained by the
method specified in
40 CFR 261.24.
Total Concentrations
in Unextracted
Waste: The total
concentrations in
the DOE-SR Vitrified
Waste, not the waste
leachate, did not
exceed the following
levels (mg/kg):
Arsenic--10; Barium--
200; Beryllium--10;
Cadmium--10;
Chromium--500; Lead--
200; Nickel--10,000;
Silver--20;
Acetonitrile--1.0,
which is below the
LDR UTS of 38 mg/kg;
and Fluoride--1.0
[[Page 54132]]
(2) Data Records:
Records of
analytical data for
the petitioned waste
must be maintained
by DOE-SR for a
minimum of three
years, and must be
furnished upon
request by EPA or
the State of South
Carolina, and made
available for
inspection. Failure
to 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
maintained with a
signed copy of the
certification
statement in 40 CFR
260.22(i)(12).
(3) Reopener
Language: (A) If, at
any time after
disposal of the
delisted waste, DOE-
SR 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 is
identified at a
level higher than
the delisting level
allowed by EPA in
granting the
petition, DOE-SR
must report the
data, in writing, to
EPA within 10 days
of first possessing
or being made aware
of that data. (B)
Based on the
information
described in
paragraph (3)(A) 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. (C) 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 DOE-SR
with an opportunity
to present
information as to
why the proposed
action is not
necessary. DOE-SR
shall have 10 days
from the date of
EPA's notice to
present such
information.(E)
Following the
receipt of
information from DOE-
SR, as described in
paragraph (3)(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 (3)(A) or
(3)(B). Any required
action described in
EPA's determination
shall become
effective
immediately, unless
EPA provides
otherwise.
(4) Notification
Requirements: DOE-SR
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.
----------------------------------------------------------------------------------------------------------------
[FR Doc. 02-21287 Filed 8-20-02; 8:45 am]
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