[Federal Register Volume 67, Number 143 (Thursday, July 25, 2002)]
[Rules and Regulations]
[Pages 48555-48558]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-18711]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-7250-8]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste Final Exclusion
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA (also, ``the Agency'' or ``we'' in this preamble) is
granting a petition submitted by Ormet Primary Aluminum Corporation
(Ormet) to exclude (or ``delist'') vitrified spent potliner (VSP),
generated and treated at the Ormet facility in Hannibal, Ohio from the
lists of hazardous wastes. Spent potliners from primary aluminum
reduction are listed as hazardous waste number K088 under the Resource
Conservation and Recovery Act (RCRA).
Today's action conditionally excludes the petitioned waste from the
list of hazardous wastes only if the waste is disposed of in a Subtitle
D landfill which is permitted, licensed, or registered by a State to
manage industrial solid waste.
EFFECTIVE DATE: This rule is effective on July 25, 2002.
ADDRESSES: The RCRA regulatory docket for this final rule, number R5-
ORMT-01, is located at the U.S. EPA Region 5, 77 W. Jackson Blvd.,
Chicago, IL 60604, and is available for viewing from 8 a.m. to 4 p.m.,
Monday through Friday, excluding Federal holidays. Call Todd Ramaly at
(312) 353-9317 for appointments. The public may copy material from the
regulatory docket at $0.15 per page.
FOR FURTHER INFORMATION CONTACT: For technical information concerning
this document, contact Todd Ramaly at the address above or at (312)
353-9317.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Background
A. What Is a Delisting Petition?
B. What Regulations Allow a Waste to Be Delisted?
II. Ormet's Delisting Petition
A. What Waste Did Ormet Petition EPA to Delist?
B. What Information Must the Generator Supply?
C. What Information Did Ormet 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 Comment Received on the Proposed Exclusion and EPA's
Responses
V. Regulatory Impact
VI. Congressional Review Act
I. Background
A. What Is a Delisting Petition?
A delisting petition is a request from a generator to exclude waste
from the list of hazardous wastes under RCRA regulations. In a
delisting petition, the petitioner must show that waste generated at a
particular facility does not meet any of the criteria for which EPA
listed the waste as set forth in Title 40, Code of Federal Regulations
(CFR) 261.11 and in the background document for the waste. A petitioner
must demonstrate that the waste does not exhibit any of the hazardous
waste characteristics (that is, ignitability, reactivity, corrosivity,
and toxicity) and must present sufficient information for us to decide
whether any factors other than those for which the waste was listed
warrant retaining it as a hazardous waste.
A generator remains obligated under RCRA to confirm that its waste
remains nonhazardous based on the hazardous waste characteristics even
if EPA has ``delisted'' the wastes.
B. What Regulations Allow a Waste to Be Delisted?
Under 40 CFR 260.20 and 260.22, a generator may petition the EPA to
remove its wastes from hazardous waste control by excluding it from the
lists of hazardous wastes contained in Secs. 261.31 and 261.32.
Specifically, Sec. 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 a generator the opportunity to petition the
Administrator to exclude a waste on a ``generator specific'' basis from
the hazardous waste lists.
II. Ormet's Delisting Petition
A. What Waste Did Ormet Petition EPA To Delist?
On April, 8, 1994, Ormet submitted an up front petition to exclude
vitrified spent potliner, K088, generated at its Hannibal Ohio plant
from the list of hazardous wastes contained in 40 CFR 261.31. In
December 1999, Ormet submitted a revised petition to exclude an annual
volume of 8,500 cubic yards of K088 generated under full scale
operation. K088 is defined as spent potliners from primary aluminum
reduction.
B. What Information Must the Generator Supply?
A generator must provide sufficient information to allow the EPA to
determine that the waste does not meet any of the criteria for which it
was listed as a hazardous waste. In addition, where there is a
reasonable basis to believe that factors other than those for which the
waste was listed (including additional constituents) could cause the
waste to be hazardous, the Administrator must determine that such
factors do not warrant retaining the waste as hazardous.
C. What Information Did Ormet Submit To Support This Petition?
To support its petition, Ormet submitted descriptions and schematic
diagrams of its manufacturing and vitrification processes and detailed
chemical and physical analysis of the vitrified potliner.
III. EPA's Evaluation and Final Rule
A. What Decision Is EPA Finalizing and Why?
Today the EPA is finalizing an exclusion for 8500 cubic yards of
vitrified spent potliner generated and treated annually at the Ormet
facility in Hannibal, Ohio.
[[Page 48556]]
Ormet petitioned EPA to exclude, or delist, the vitrified spent
potliner because Ormet believes that the petitioned waste does not meet
the criteria for which it was listed it and that there are no
additional constituents or factors which could cause the waste to be
hazardous. Review of this petition included consideration of the
original listing criteria, as well as the additional factors required
by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See section
222 of HSWA, 42 United States Code (U.S.C.) 6921(f), and 40 CFR
260.22(d)(2)-(4).
On August 21, 2001 EPA proposed to exclude or delist Ormet's
vitrified spent potliner from the list of hazardous wastes in 40 CFR
261.31 and accepted public comment on the proposed rule (66 FR 43823).
EPA considered all comments received, and for reasons stated in both
the proposal and this document, we believe that Ormet's waste should be
excluded from hazardous waste control.
B. What Are the Terms of This Exclusion?
Ormet must dispose of the vitrified spent potliner in a Subtitle D
landfill which is permitted, licensed, or registered by a state to
manage industrial waste. Any amount exceeding 8,500 cubic yards,
annually, is not considered delisted under this exclusion. This
exclusion is effective only if all conditions contained in today's rule
are satisfied.
C. When Is the Delisting Effective?
This rule is effective July 25, 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. This rule
reduces rather than increases the existing requirements and, therefore,
is effective immediately upon publication under the Administrative
Procedure Act, pursuant to 5 U.S.C. 553(d).
D. How Does 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 petitioners
to contact the state regulatory authority to establish the status of
their wastes 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.
IV. Public Comments Received on the Proposed Exclusion and EPA's
Responses
One comment was received from Ormet which pointed out that the
proposed rule required sampling on a quarterly basis but required
subsequent data submittals on a monthly basis. The discrepancy has been
corrected. Verification sampling and data submittals are both required
quarterly.
V. Regulatory Impact
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 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, 204, and 205 of the Unfunded Mandates Reform Act of
1995 (UMRA) (Public Law 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 impose substantial
direct compliance costs on 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, or impose substantial direct compliance
costs state and local governments 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(c) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) 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. EPA has complied
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining
the takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.
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.).
VI. Congressional Review Act
The Congressional Review Act (5 U.S.C. 801 et seq.) as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of Congress and to the Comptroller General of the United
States. 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, procedure,
or practice that do not substantially affect the rights or obligations
of non agency parties (5 U.S.C. 804(3)). This rule is not a ``major
rule'' as defined by 5 U.S.C. 804(2). This rule will become effective
on the date of publication in the Federal Register.
List of Subjects in 40 CFR Part 261
Environmental Protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
[[Page 48557]]
Dated: July 9, 2002.
Phyllis A. Reed,
Acting Director, Waste, Pesticides and Toxins 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, 6924(y), and
6938.
2. In Table 2 of Appendix IX to part 261 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
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Facility Address Waste description
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Ormet Primary Aluminum Corporation....... Hannibal, OH................. Vitrified spent potliner (VSP), K088,
that is generated by Ormet Primary
Aluminum Corporation in Hannibal
(Ormet), Ohio at a maximum annual
rate of 8,500 cubic yards per year
and disposed of in a Subtitle D
landfill, licensed, permitted, or
registered by a state. The exclusion
becomes effective as of July 25,
2002.
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) Land disposal
restrictions (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 collect
two samples of the waste and analyze
them for the constituents listed in
paragraph (1) using the methodologies
specified in an EPA-approved sampling
plan specifying (a) the TCLP method,
and (b) the TCLP procedure with an
extraction fluid of 0.1 Normal sodium
hydroxide solution. The constituent
concentrations measured in the
extract 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, the treatment
process, or the chemicals used, 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 quarterly
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) relevant
to the delisted waste indicating that
any constituent identified in
paragraph (1) is at a level in the
leachate higher than the delisting
level established in paragraph (1),
or is at a level in the groundwater
higher than the 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) or any other
information received from any source,
the Regional Administrator will make
a preliminary determination as to
whether the reported information
requires Agency action to protect
human health or the environment.
Further action may include
suspending, or revoking the
exclusion, or other appropriate
response necessary to protect human
health and the environment.
(c) If the Regional Administrator
determines that the 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.
[[Page 48558]]
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[FR Doc. 02-18711 Filed 7-24-02; 8:45 am]
BILLING CODE 6560-50-P