[Federal Register Volume 67, Number 100 (Thursday, May 23, 2002)]
[Rules and Regulations]
[Pages 36110-36112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-12964]
[[Page 36110]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-7216-8]
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, also the Agency or
we in this preamble) today is granting a petition submitted by Weirton
Steel Corporation (Weirton) to exclude (or delist), on a one-time
basis, a wastewater treatment sludge from the lists of hazardous
wastes.
After careful analysis, we have concluded the petitioned waste does
not present an unacceptable risk when disposed of in a Subtitle D
(nonhazardous waste) landfill. This exclusion applies to wastewater
treatment sludge previously generated at the Weirton facility in
Weirton, West Virginia, which is contained in an inactive surface
impoundment (the East Lagoon) and two tanks (the Figure 8 tanks).
Accordingly, this final rule conditionally excludes a specific volume
of the petitioned waste from the requirements of the hazardous waste
regulations under the Resource Conservation and Recovery Act (RCRA)
when the petitioned waste is removed from the units in which it
currently resides for disposal in a Subtitle D landfill which is
permitted, licensed, or registered by a State to manage municipal or
industrial solid waste.
EFFECTIVE DATE: May 23, 2002.
ADDRESSES: The RCRA regulatory docket for this final rule is located at
the offices of U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA,
19103-2029, and is available for you to view from 8:30 a.m. to 5 p.m.,
Monday through Friday, except on Federal holidays. Please call David M.
Friedman at (215) 814-3395 for appointments. The public may copy
material from the regulatory docket at $0.15 per page.
FOR FURTHER INFORMATION CONTACT: For information concerning this
document, please contact David M. Friedman at the address above or at
(215) 814-3395.
SUPPLEMENTARY INFORMATION:
Official Record
The official record for this action is kept in a paper format. The
official record is maintained at the address in the ADDRESSES section
at the beginning of this document.
Preamble Outline
I. Overview Information
II. Background
A. What is a delisting petition?
B. What regulations allow hazardous waste generators to delist
waste?
C. What information must the generator supply?
III. Weirton's Delisting Petition
A. What waste is the subject of Weirton's petition?
B. What information did Weirton submit to support this petition?
IV. EPA's Evaluation and Final Decision
A. Why is EPA approving this petition?
B. What limitations are associated with this exclusion?
C. When is the final rule effective?
D. How does this action affect States?
V. Public Comments Received on the Proposed Exclusion
A. Who submitted comments on the proposed rule?
B. What were the comments?
VI. Administrative Assessments
I. Overview Information
On February 26, 2002, we proposed to grant a petition submitted by
Weirton to exclude (or delist) from the definition of hazardous waste
on a one-time basis, a wastewater treatment sludge currently contained
in several onsite units. Today we are finalizing the decision to grant
a conditional exclusion as described in the February 26, 2002, proposed
rule.
II. Background
A. What Is a Delisting Petition?
A delisting petition is a formal request from a generator to
exclude from the lists of hazardous waste regulated by RCRA, a waste
that the generator believes should not be considered hazardous.
In order for a petition to succeed, a petitioner must first show
that a waste generated at its facility does not meet any of the
criteria for which the waste was listed. The criteria which we use to
list wastes are found in 40 CFR 261.11. An explanation of how these
criteria apply to a particular waste is contained in the background
document for that listed waste.
In addition, the petitioner must demonstrate that the waste does
not exhibit any of the hazardous waste characteristics defined in
subpart C of 40 CFR part 261 (i.e., ignitability, corrosivity,
reactivity, and toxicity), and must present sufficient information for
us to determine whether any other factors (including additional
constituents) warrant retaining the waste as a hazardous waste.
A generator remains obligated under RCRA to confirm that its waste
remains non-hazardous based on the hazardous waste characteristics
defined in subpart C of 40 CFR part 261, even if EPA has delisted its
waste.
B. What Regulations Allow Hazardous Waste Generators To Delist Waste?
Under 40 CFR 260.20 and 260.22, a generator may petition EPA to
remove its waste from hazardous waste control by excluding it from the
lists of hazardous wastes contained in 40 CFR 261.31, 261.32 and
261.33. Specifically, 40 CFR 260.20 allows any person to petition the
Administrator to modify or revoke any provision of parts 260 through
266, 268 and 273 of Title 40 of the Code of Federal Regulations. 40 CFR
260.22 provides generators the opportunity to petition the
Administrator to exclude a waste on a ``generator-specific'' basis from
the hazardous waste lists.
C. What Information Must the Generator Supply?
A petitioner must provide sufficient information to allow EPA to
determine that the waste to be excluded does not meet any of the
criteria under which the waste was listed as a hazardous waste. In
addition, the Administrator must determine that the waste is not
hazardous for any other reason.
III. Weirton's Delisting Petition
A. What Waste Is the Subject of Weirton's Petition?
Weirton owns and operates an integrated steel mill, including the
C&E wastewater treatment plant, occupying approximately 1300 acres on
the banks of the Ohio River in Weirton, WV. On March 3, 1999, Weirton
petitioned EPA to exclude, on a one-time basis, 18,000 cubic yards of
wastewater treatment sludge contained in an inactive surface
impoundment (the East Lagoon) and two tanks (the Figure 8 tanks) from
the list of hazardous wastes contained in 40 CFR 261.31. The wastewater
treatment sludge (known as the C&E sludge) is described in Weirton's
petition as a mixture of small quantities of EPA Hazardous Waste
Numbers F007 (spent cyanide plating bath solutions from electroplating
operations) and F008 (plating bath residues from the bottom of plating
baths from electroplating operations where cyanides are used in the
process) with nonhazardous solids that settled during treatment of
process wastewater, cooling water, quench water, and stormwater
entering Weirton's C&E outfall area.
B. What Information Did Weirton Submit To Support This Petition?
To support its petition, Weirton submitted (1) detailed
descriptions of its manufacturing and wastewater
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treatment processes, including Material Safety Data Sheets (MSDS) for
commercial products used in its processes; (2) detailed analytical
results from representative samples of its wastewater treatment sludge
collected both by the United States Army Corps of Engineers and by
Weirton; and (3) environmental monitoring data from a groundwater
investigation being conducted as part of an ongoing RCRA Facility
Investigation at its site.
IV. EPA's Evaluation and Final Decision
A. Why Is EPA Approving This Petition?
Weirton petitioned EPA to exclude or delist on a one-time basis,
the wastewater treatment sludge contained in an inactive surface
impoundment (the East Lagoon) and two tanks (the Figure 8 tanks)
because Weirton believes that the petitioned waste does not meet the
criteria for which it was listed as a hazardous waste. Weirton also
believes that the waste does not contain other constituents in
concentrations that would render it hazardous.
Review of this petition included consideration of the original
listing criteria, as well as factors (including additional
constituents) other than those for which the waste was listed, as
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(a)(1)
and (2).
On February 26, 2002, we proposed to conditionally exclude
Weirton's C&E sludge from the list of hazardous wastes in 40 CFR
261.31, and requested public comment on the proposed rule. (See, 67 FR
8762). For reasons stated in both the proposed rule and this document,
we believe that Weirton's C&E sludge should be excluded from hazardous
waste control.
B. What Limitations Are Associated With This Exclusion?
This exclusion applies only to a maximum volume of 18,000 cubic
yards of C&E sludge, the estimated amount currently contained in the
East Lagoon and the Figure 8 tanks as described in Weirton's petition.
Any volume of sludge exceeding this amount cannot be managed as
nonhazardous waste under this exclusion.
This exclusion will be effective only when the sludge is removed
from the units in which it currently resides. That is, the C&E sludge
remains a hazardous waste until it is removed from the East Lagoon and
the Figure 8 tanks for transportation and subsequent disposal in a
Subtitle D landfill which is permitted, licensed, or registered by a
state to manage municipal or industrial solid waste.
Furthermore, Weirton must provide a one-time notification to any
State regulatory agency to which or through which the delisted waste
will be transported for disposal at least 60 calendar days prior to
commencing these activities.
C. When Is the Final Rule Effective?
This rule is effective May 23, 2002. HSWA amended section 3010 of
RCRA to allow rules to become effective in less than six months when
the regulated community does not need the six-month period to come into
compliance. That is the case here because this rule reduces, rather
than increases, the existing requirements for persons generating
hazardous wastes. For these same reasons, this rule can become
effective immediately (that is, upon publication in the Federal
Register) under the Administrative Procedure Act, pursuant to 5 U.S.C.
553(d).
D. How Does This Action Affect States?
Because EPA is issuing today's exclusion under the Federal RCRA
delisting program, only States subject to Federal RCRA delisting
provisions would be directly affected. This would exclude two
categories of States: States having a dual system that includes Federal
RCRA requirements and their own requirements, and States who have
received EPA's authorization to make their own delisting decisions. We
describe these two situations below.
We allow 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,
or that prohibits a Federally issued exclusion from taking effect in
the State until the State approves the exclusion through a separate
State administrative action. Because a dual system (that is, both
Federal and State programs) may regulate a petitioner's waste, we urge
petitioners to contact the applicable State regulatory authorities or
agencies to establish the status of their waste under that State's
program.
We have 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 necessarily
apply within those authorized States. If Weirton transports the
petitioned waste to, or manages the waste in, any State with delisting
authorization, Weirton must obtain delisting approval from that State
before it can manage the waste as nonhazardous in that State.
V. Public Comments Received on the Proposed Exclusion
A. Who Submitted Comments on the Proposed Rule?
We received public comments on the February 26, 2002, proposed
exclusion from one interested party which was Weirton, the petitioner.
B. What Were the Comments?
Weirton expressed its support for the proposed exclusion.
VI. Administrative Assessments
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a rule of general applicability and therefore is not a
``regulatory action'' subject to review by the Office of Management and
Budget. Because this action is a rule of particular applicability
relating to a particular facility, it is not subject to the regulatory
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601
et seq.), or to sections 202, 203, and 205 of the Unfunded Mandates
Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because the rule will affect
only one facility, it will not significantly or uniquely affect small
governments, as specified in section 203 of UMRA, or communities of
Indian tribal governments, as specified in Executive Order 13175 (65 FR
67249, November 6, 2000). For the same reason, this rule 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 Executive Order 13132 (64 FR 43255, August 10, 1999). This
rule also is not subject to Executive Order 13045 (62 FR 19885, April
23, 1997), because it is not economically significant.
This rule does not involve technical standards; thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272) do not apply. As required by
section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in
issuing this rule, EPA has taken the necessary steps to eliminate
drafting errors and ambiguity, minimize potential litigation, and
provide a clear legal standard for affected conduct. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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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. Section 804 exempts from section 801 the following types
of rules (1) rules of particular applicability; (2) rules relating to
agency management or personnel; and (3) rules of agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties (5 U.S.C. 804(3)). EPA is not
required to submit a rule report regarding today's action under section
801 because this is a rule of particular applicability.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Section 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: May 13, 2002.
Donald S. Welsh,
Regional Administrator, Region III.
For the reasons set forth 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.
Appendix IX of Part 261--[Amended]
2. Table 1 of appendix IX of part 261 is amended to add the
following waste stream in alphabetical order by facility to read as
follows:
Appendix IX to Part 261--Wastes Excluded Under
260.20 and 260.22.
Table 1.--Wastes Excluded From Non-Specific Sources
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Facility Address Waste description
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Weirton Steel Corporation................ Weirton, West Virginia.................. Wastewater treatment sludge
(known as C&E sludge)
containing EPA Hazardous
Waste Numbers F007 and
F008, subsequent to its
excavation from the East
Lagoon and the Figure 8
tanks for the purpose of
transportation and
disposal in a Subtitle D
landfill after May 23,
2002. This is a one-time
exclusion for a maximum
volume of 18,000 cubic
yards of C&E sludge.
(1) Reopener language.
(a) If Weirton discovers
that any condition or
assumption related to the
characterization of the
excluded waste which was
used in the evaluation of
the petition or that was
predicted through modeling
is not as reported in the
petition, then Weirton
must report any
information relevant to
that condition or
assumption, in writing, to
the Regional Administrator
and the West Virginia
Department of
Environmental Protection
within 10 calendar days of
discovering that
information.
(b) Upon receiving
information described in
paragraph (a) of this
section, regardless of its
source, the Regional
Administrator and the West
Virginia Department of
Environmental Protection
will determine whether the
reported condition
requires further action.
Further action may include
repealing the exclusion,
modifying the exclusion,
or other appropriate
response necessary to
protect human health or
the environment.
(2) Notification
Requirements.
Weirton must provide a one-
time written notification
to any State Regulatory
Agency to which or through
which the delisted waste
described above will be
transported for disposal
at least 60 calendar days
prior to the commencement
of such activities.
Failure to provide such
notification will be
deemed to be a violation
of this exclusion and may
result in revocation of
the decision and other
enforcement action.
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[FR Doc. 02-12964 Filed 5-22-02; 8:45 am]
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