[Federal Register Volume 67, Number 147 (Wednesday, July 31, 2002)]
[Proposed Rules]
[Pages 49649-49656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19325]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-7252-7]
Hazardous Waste Management System; Proposed Exclusion for
Identifying and Listing Hazardous Waste and a Determination of
Equivalent Treatment
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule and request for comment.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA, also, ``the Agency''
or ``we'' in this preamble) is proposing to grant two petitions
submitted by the University of California--E.O. Lawrence Berkeley
National Laboratory (LBNL). The first petition is to exclude (or
``delist'') certain hazardous wastes from the lists of hazardous
wastes. Today's proposed rule proposes to grant LBNL's petition to
delist its F002, F003, and F005 waste, and requests public comment on
the proposed decision. EPA reviewed all of the waste-specific
information provided by LBNL and determined that the petitioned waste
is nonhazardous with respect to the original listing criteria.
The Agency is also proposing to grant LBNL's second petition, which
is for a determination of equivalent treatment (DET) for the catalytic
chemical oxidation (CCO) technology that LBNL used to treat the
original mixed waste.
EPA reviewed all of the specific CCO treatment information provided
by LBNL and determined that the CCO treatment is equivalent to
combustion. Today's proposed rule proposes to grant LBNL's DET petition
for the CCO technology, and requests public comment on the proposed
decision. If the proposed DET becomes final, the treatment residues
generated from LBNL's use of the CCO technology will have met the
applicable LDR technology standard for DOO1 waste. If the proposed
delisting and DET become final, then the petitioned waste can be
disposed at an authorized low-level radioactive waste facility.
DATES: Comments on this proposed rule will be accepted until September
16, 2002. We will stamp comments postmarked after the close of the
comment period as ``late.'' These ``late'' comments may not be
considered in formulating final decisions.
Any person may request a hearing on this proposed rule by filing a
written request by August 15, 2002. The request must contain the
information prescribed in 40 CFR 260.20(d).
ADDRESSES: Please send two copies of your comments to Rich Vaille,
Associate Director, Waste Management Division (WST-1), U.S.
Environmental Protection Agency, 75 Hawthorne Street, San Francisco, CA
94105.
Any person may request a hearing on these proposed decisions by
filing a written request with Jeff Scott, Director, Waste Management
Division (WST-1) U.S. Environmental Protection Agency, 75 Hawthorne
Street, San Francisco, CA 94105.
The RCRA regulatory docket for this proposed rule is located at the
U.S. Environmental Protection Agency Records Center, 75 Hawthorne
Street, San Francisco, CA 94105, and is available for viewing from 9
a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. The
docket contains the petition, all information submitted
[[Page 49650]]
by the petitioner, and all information used by EPA to evaluate the
petition. Call the EPA Region 9 RCRA Record Center at (415) 947-4596
for appointments. The public may copy material from the regulatory
docket at $0.15 per page.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at 800-424-9346. For technical information on specific
aspects of these petitions, contact Cheryl Nelson at the address above
or at 415-972-3291, e-mail address: [email protected].
SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed
in the following outline:
I. Overview Information
A. What Actions is EPA proposing to approve?
B. How Will LBNL Manage the Waste if these Petitions are
Approved?
C. When would EPA finalize these proposed actions?
II. Background
A. What laws and regulations give EPA the authority to delist
wastes?
B. What is a Determination of equivalent treatment?
C. How would these actions affect states?
III. EPA's Evaluation of the Petitions
A. What waste did LBNL describe in their petitions to EPA?
B. What information and Analyses did LBNL submit to support
their petitions?
C. How is the petitioned waste generated?
D. How did LBNL sample and analyze the waste for the petitions?
E. What were the results of LBNL's analysis?
F. How did EPA evaluate the risk of delisting the petitioned
waste?
G. What other factors did EPA consider in its evaluation of
these petitions?
H. What did EPA conclude about LBNL's analysis?
I. What is EPA's final evaluation of these petitions?
IV. Conditions for Exclusion
A. What conditions are associated with this exclusion?
B. What Happens if LBNL fails to meet the conditions of the
exclusion?
V. Effect on State Authorizations
VI. Effective Date
VII. Administrative Requirements
I. Overview Information
A. What Actions Is EPA Proposing To Approve?
First, EPA is proposing to grant LBNL's petition to have
approximately 200 US gallons of residues from treatment of low-level
mixed waste from the National Tritium Labeling Facility (NTLF), a
research facility located within LBNL, excluded (delisted) from the
definition of a hazardous waste. LBNL is a multi-program laboratory
operated by University of California under contract with the Department
of Energy (DOE). The petitioned wastes are treatment residues generated
through treatment of mixed waste. Mixed waste is defined as waste that
contains hazardous waste subject to the requirements of the Resource
Conservation and Recovery Act (RCRA) and source, special nuclear, or
by-product material subject to the requirements of the Atomic Energy
Act (AEA). See 42 U.S.C. 6903 (41), added by the Federal Facility
Compliance Act of 1992. LBNL's petitioned waste contains tritium, a
radioactive hydrogen isotope (3H) manufactured for use as a
tracer in biomedical research.
The petitioned wastes meet the definition of listed F002, F003, and
F005 RCRA hazardous wastes because they are derived from treatment of
mixed wastes that are listed for these waste codes. LBNL petitioned EPA
to grant a one-time, generator-specific delisting for the treatment
residues, because LBNL believes that its wastes do not meet the
criteria for which these types of wastes were listed. The petition is
for a one-time delisting because all of the petitioned waste has been
generated, and will not be generated again.
Based on our review, the petitioned waste is essentially tritiated
water with no detectable organic chemical constituents, and therefore
we agree with the petitioner that the petitioned waste is nonhazardous
with respect to the original listing criteria. Furthermore, EPA finds
no additional constituents or factors which would cause the petitioned
waste to be hazardous under RCRA. Our proposed decision to delist the
waste is based upon our evaluation of the process which generates the
waste, our first-hand observations of the process used to treat the
waste, and our review of the analytical data submitted to support the
petition.
In reviewing this petition, we considered the original listing
criteria and the additional factors required by the Hazardous and Solid
Waste Amendments of 1984 (HSWA). See 222 of Pub. L. 98-616 (HSWA), 42
U.S.C. 6921(f), and 40 CFR 260.22(d)(2) through (4). We compared and
evaluated the petitioned waste against the listing criteria and factors
cited in 40 CFR 261.11(a)(2) and (3).
We also evaluated the waste for other factors or criteria which
could cause the petitioned waste to be hazardous under RCRA. These
factors included: (1) Whether the waste is considered acutely toxic;
(2) the toxicity of the constituents; (3) the concentrations of the
constituents in the waste; (4) the tendency of the hazardous
constituents to migrate and to bioaccumulate; (5) persistence of the
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.
If our review had found that the petitioned waste remained
hazardous based on the factors for which we originally listed the
waste, we would have proposed to deny the petition. If this decision
becomes final, the DOE would still retain authority over this waste
because of the tritium, a low-level radioactive constituent.
Secondly, LBNL has petitioned EPA under 40 CFR 268.42(b) for a
determination that the CCO technology used to perform the treatment of
the original mixed waste is equivalent to combustion as defined in
EPA's Land Disposal Restriction (LDR) Program for treatment of high-
total organic carbon (TOC) subcategory D001 ignitable wastes. Because
LBNL's original mixed waste is also a D001 ignitable waste, it must be
treated via a combustion technology prior to disposal to meet the LDR
treatment standard.
We are proposing to grant the DET because LBNL has adequately
demonstrated that the CCO technology is equivalent to combustion for
the treatment of organic wastes. This demonstration is based primarily
on the following key factors: (1) The CCO achieves a destruction and
removal efficiency of more than 99.999% at a temperature near or above
500 deg.C; (2) the CCO system does not emit Hydrogen Chloride Vapor
(HCl) or particulate matter; and (3) the CCO was operated in compliance
with Federal, State and local hazardous waste and air emission
regulations.
If the proposed DET becomes final, the treatment residues generated
from LBNL's use of the CCO technology will have met the applicable LDR
technology standard for DOO1 waste. The LDR treatment standards for
F002, F003, and F005 wastes are numeric standards. The CCO technology
treated the original mixed wastes to below these numeric standards.
B. How Will LBNL Manage the Waste if These Petitions are Approved?
If EPA's proposed decisions are made final, the petitioned waste
will no longer be subject to regulation as a hazardous waste under
Subtitle C of RCRA thereby allowing LBNL the option to dispose this
low-level radioactive waste at a Nuclear Regulatory Commission (NRC),
licensed or a DOE-authorized low-level radioactive waste disposal
facility. Without these approvals, the petitioned waste would remain a
mixed waste
[[Page 49651]]
subject to both RCRA regulations and DOE orders. Available treatment
facilities for high activity tritium-containing mixed wastes are
extremely limited and are not designed to capture the tritium during
treatment. There are no available mixed waste disposal facilities for
high-activity tritium-containing mixed wastes. LBNL and numerous other
research facilities nationally are currently storing this type of mixed
waste onsite pending more cost effective and environmentally acceptable
treatment and disposal options.
C. When Would EPA Finalize These Proposed Actions?
HSWA specifically requires the EPA to provide notice and an
opportunity for public comment before granting or denying a final
exclusion. Thus, EPA will not make a final decision to grant an
exclusion until it has addressed all timely public comments (including
any at public hearings) on today's proposal.
While not required, EPA encourages public involvement in our
decision making and is therefore also seeking comments on our proposed
DET decision. Additionally, to clearly describe the regulatory
approvals needed for LBNL to dispose the petitioned waste offsite, it
is necessary to describe both the delisting and the DET petitions.
Since this proposed rule would reduce the existing requirements for
a person generating hazardous wastes, the regulated community does not
need a six-month period to achieve compliance in accordance with
section 3010 of RCRA as amended by HSWA. Therefore, the exclusion and
the DET would become effective immediately upon finalization.
II. Background
A. What Laws and Regulations Give EPA the Authority to Delist Wastes?
On January 16, 1981, as part of its regulations implementing
section 3001 of RCRA, EPA published a list of hazardous wastes from
non-specific and specific sources. EPA has amended this list several
times. See 40 CFR 261.31 and 261.32. EPA lists these wastes as
hazardous because: (1) they 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 Sec. 261.11(a)(2) or (a)(3).
``Listed'' wastes are often from specific industrial processes.
Individual waste streams may vary, however, depending on raw materials,
industrial processes, and other factors. Thus, while a listed waste is
generally hazardous, a specific waste from an individual facility
meeting the listing description may not be.
For this reason, 40 CFR 260.20 and 260.22 provide an exclusion
procedure, allowing persons to demonstrate that a specific waste from a
particular generating facility \1\ should not be regulated as a
hazardous waste. Section 260.20 establishes general procedures for
rulemaking petitions, and Sec. 260.22 establishes the specific
requirements for a petition to exclude a waste at a particular facility
from the list of hazardous wastes in Part 261.
---------------------------------------------------------------------------
\1\ Many industrial processes result in the production of
hazardous waste, as well as useful products and services. A
``generating facility'' is a facility in which hazardous waste is
produced, and a ``generator'' is a person who produces hazardous
waste or causes hazardous waste to be produced at a particular
place. See 40 CFR 260.10 for regulatory definitions of
``generator,'' ``facility,'' ``person,'' and other terms related to
hazardous waste, and 40 CFR part 262 for regulatory requirements for
generators.
---------------------------------------------------------------------------
To have their wastes excluded, petitioners must first show that
wastes generated at their facilities do not meet any of the criteria
for which the wastes were listed. See 40 CFR 260.22(a)(1) and the
background documents for the listed wastes. Second, the EPA
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 must also 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
concentrations.
See 40 CFR 260.22(a)(2) 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 hazardous waste characteristics (i.e., not
exhibiting hazardous waste characteristics, including any promulgated
subsequent to a delisting decision.)
In addition, mixtures containing listed hazardous wastes and
residues from the treatment, storage, or disposal of listed hazardous
wastes are also considered hazardous wastes. See 40 CFR
261.3(a)(2)(iii) and (c)(2)(i), referred to as the ``mixture'' and
``derived-from'' rules, respectively. Such wastes are also eligible for
exclusion but remain hazardous wastes unless and until they are
excluded.
On October 10, 1995, the Administrator delegated to the Regional
Administrators the authority under 40 CFR 260.20 and 260.22 to approve
or deny petitions submitted 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.
California is not authorized to administer the delisting program and
therefore EPA Region 9 has the authority to approve or deny delisting
petitions in California.
B. What Is a Determination of Equivalent Treatment?
Under Section 3004(m) of RCRA, EPA is required to set ``levels or
methods of treatment, if any, which substantially diminish the toxicity
of the waste or substantially reduce the likelihood of migration of
hazardous constituents from the waste so that short-term and long-term
threats to human health and the environment are minimized''. EPA
implements section 3004(m) by establishing land disposal restriction
treatment standards based on the performance of best demonstrated
available technology (BDAT). We have generally established two types of
treatment standards: (1) a numerical, concentration-based treatment
limit for each constituent of concern, or (2) a method of treatment
that must be used to treat a particular constituent or constituent(s).
In either case, the treatment standard is based on the BDAT.
Under the second approach where a technology is specified as the
treatment standard, EPA allows facilities to submit petitions (or
applications) demonstrating that an alternative treatment method can
achieve a measure of performance equivalent to that achievable by the
EPA-specified method. This demonstration of equivalency, known as a
determination of equivalent treatment if approved, is typically both
waste-specific and site-specific. Such approvals are based on: (1)
Demonstrations of equivalence for an alternative method of treatment
based on a statistical comparison of technologies, including a
comparison of specific design and operating parameters; (2) the
development of a concentration-based standard that utilizes a surrogate
or indicator compound that guarantees effective treatment of the
hazardous constituents; and (3) the development of a new
[[Page 49652]]
analytical method for quantifying the hazardous constituents.\2\
---------------------------------------------------------------------------
\2\ See 40 CFR 268.42(b) and the preamble for the Third
Scheduled Wastes; Final Rule (55 FR 22536, June 1, 1990) for more
information
---------------------------------------------------------------------------
Thus, in determining whether a technology is equivalent to the
specified technology, EPA carefully evaluates the treatment process,
including examining the characteristics of the residuals that are
generated, and compares the performance of this alternative treatment
process to the specified method of treatment. We also look at any other
potential adverse environmental impacts, including releases of
hazardous constituents to air and water. See Chemical Waste Management
v. EPA, 976 F.2d 2, 17 (D.C. Cir. 1992), explaining the relevance of
assessing releases to media other than land in determining whether
treatment is minimizing threats, as required by RCRA section 3004 (m).
The original mixed wastes generated by NTLF are regulated under
RCRA as F002, F003, F005 and high-TOC D001 category wastes. The
applicable LDR treatment standards for F002, F003, and F005 are numeric
standards. LBNL treated NTLF mixed wastes with its CCO technology. The
treatment residues do not contain any detectable chemical constituents
above their respective LDR treatment standards.
The LDR treatment standard for high-TOC ignitable liquid (D001) is
a technology standard based upon combustion (40 CFR 268.40). The
combustion standard is defined as ``high temperature destruction
technologies, such as combustion in incinerators, boilers, or
industrial furnaces operated in accordance with the applicable
requirements. * * *'' (40 CFR 268.42). While NTLF mixed wastes could be
treated via incineration or boiling for energy recovery, the available
incinerators or boilers that could treat these wastes would result in
release of nearly all of the tritium in the mixed waste to the
environment. LBNL developed an alternative technology, the CCO
technology, that includes engineering controls designed to capture and
retain tritium, so that the mixed waste can be managed in a manner that
minimizes releases to the environment. EPA has determined that this CCO
technology is equivalent to combustion. If the proposed DET becomes
final, the treatment residues generated from LBNL's use of the CCO
technology will have met the applicable LDR technology standard for
DOO1 waste.
C. How Would These Actions Affect States?
This proposed rule, if promulgated, would be issued under the
Federal (RCRA) delisting and demonstration of equivalent treatment
programs. 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 a state. 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 and/or demonstration of
equivalent treatment program in lieu of the Federal program, i.e., to
make their own decisions. Therefore, these proposed actions, if
promulgated, would not apply in those authorized States. If the
petitioned waste will be transported to any State with delisting
authorization, LBNL must obtain delisting authorization from that State
before the waste may be managed as nonhazardous in that State.
III. EPA's Evaluation of the Petitions
A. What Waste Did LBNL Describe in Their Petitions to EPA?
On June 30, 1999, LBNL petitioned EPA to exclude from the list of
hazardous wastes at 40 CFR 261.31, an initial volume of approximately
105 US gallons and an approximate annual volume of 65 US gallons of CCO
treatment residues generated at the NTLF and designated as F002, F003,
and F005 listed mixed wastes. F002, F003, and F005 wastes are spent
halogenated and non-halogenated solvent mixtures from non-specific
sources. LBNL also included in this submittal a demonstration of
equivalent treatment petition for this same waste as this waste is also
high-TOC subcategory D001 ignitable wastes.
Since submitting the petitions, the NTLF has generated an
additional approximately 95 gallons of treatment residues. There will
be no additional treatment residues from the CCO process. Therefore,
the total amount of waste LBNL has petitioned to delist and for which
it has sought demonstration of equivalent treatment approval is a total
fixed amount of 200 US gallons.
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 LBNL's estimate of the fixed volume of
waste.
B. What Information and Analyses Did LBNL Submit To Support Their
Petitions?
To support its delisting petition under 40 CFR 260.20(b) and
260.22(i), LBNL submitted: (1) a detailed description, including
Material Safety Data Sheets, of the chemicals and processes used to
generate and treat the wastes, (2) descriptions and schematic diagrams
of the treatment system, (3) analyses for total constituent analyses
for all organic compounds listed in Appendix VIII of 40 CFR Part 261
using an in-house Gas Chromatograph (GC) equipped with both a Flame
Ionization Detector (FID) and a Mass Spectrometer (MS), and (4) total
constituent analyses of surrogate nonradioactive samples by an
independent commercial laboratory for industrial solvents, volatile
organic compounds, and semi-volatile organic compounds using EPA Test
Methods 8015 (Modified), 8260, and 8270, respectively.
In addition to the above, to support its DET petition under 40 CFR
268.42(b), LBNL submitted: (1) calculations demonstrating the
destruction and removal efficiency for its CCO technology, (2) detailed
information on the monitoring and inspection procedures for the CCO
technology, and (3) information demonstrating compliance with local and
state environmental regulations.
C. How Is the Petitioned Waste Generated?
The petitioned waste is the treatment residues from CCO (treatment)
of the original mixed wastes. The original mixed waste was generated by
NTLF, a noncommercial research organization designated by the DOE and
the National Institutes of Health to conduct tritium labeling research
and development. (NTLF began operating in 1982 and was managed by the
University of California at LBNL. NTLF ceased conducting National
Institutes of Health-funded research on December 31, 2001 and is now
undergoing closure.) Treatment options for mixed waste are extremely
limited and prohibitively expensive. The only approved treatment option
under RCRA for NTLF's tritium-containing mixed waste is incineration or
boiling for energy recovery, which result in the release of the tritium
to the environment. LBNL and numerous other research facilities
nationally are currently storing their tritium-containing mixed waste
onsite pending more cost effective and environmentally
[[Page 49653]]
acceptable treatment and disposal options.
In 1996, LBNL began a study to evaluate the effectiveness of
treating tritiated mixed waste using CCO technology. The concept of CCO
is to destroy the hazardous portion of the mixed waste while capturing
the radioactive portion for future recycling or proper disposal. As
part of this study, LBNL constructed two CCO units at the NTLF (one for
surrogate non-radioactive wastes and one for mixed wastes) and
conducted a treatability study by treating both surrogate and mixed
waste samples. The treatability study was conducted in accordance with
the California State treatability study exclusion in Title 22 of the
California Code of Regulations (CCR) Section 66261.4 (e) and (f).
The CCO technology involves high-temperature decomposition of
organic chemicals in the presence of a catalyst. Treatment by the CCO
generates mainly carbon dioxide gas and tritiated water. Many of the
mixed waste samples prior to treatment contained low concentrations of
acetonitrile and some contained low concentrations of chloroform. After
treatment the tritiated water did not contain detectable concentrations
of acetonitrile and chloroform. The tritiated water was generally
acidic with a pH range from 2 to 3 but LBNL staff measured the pH of
each batch of tritiated water and neutralized it to a pH of between 5
and 9. The tritiated water is considered RCRA hazardous waste F002,
F003, and F005 because it is derived from a mixed waste (due to the
``derived-from'' rule discussed above).
The CCO process also generates bubbler water, which is water that
is used in the process to ensure efficient capture of tritiated water
from the gas after treatment. Following treatment, the bubbler water is
stabilized to prevent release of tritium by mixing it with the silica
gel, an inert substance, through which it was vented during the CCO
process.
The wastes proposed for delisting are the tritiated water and the
bubbler water mixed with CCO-process silica gel.
D. How Did LBNL Sample and Analyze the Waste for the Petitions?
LBNL developed the sampling and analysis plan for the petitioned
wastes in consultation with EPA Region 9. LBNL operated two CCO units
during the treatability study; one for mixed waste and one for non-
radioactive waste surrogate samples \3\ that were identical in chemical
composition to the mixed waste samples.
---------------------------------------------------------------------------
\3\ Joint EPA/NRC mixed waste testing guidance offers two
strategies for helping to maintain radiation exposures As Low As is
Reasonably Achievable (ALARA) if testing is required for mixed
waste. These strategies are the use of a sample size of less than
100 grams, as long as the resulting test is sufficiently sensitive
to measure the constituents of interest at the regulatory levels,
and the use of surrogate materials, as long as they are chemically
identical to the mixed waste and faithfully represent the hazardous
constituents in the waste mixture. (Joint NRC/EPA Guidance on
Testing Requirements for Mixed Radioactive and Hazardous Waste. 62
FR 62080 (November 20, 1997)).
---------------------------------------------------------------------------
Because there are no commercially available analytical laboratories
with the ability to analyze high activity mixed wastes from NTLF (due
to the level of radioactivity), all analytical testing for these mixed
wastes was conducted in-house by LBNL and NTLF staff. As a quality
control measure, non-radioactive surrogate waste samples were sent for
analysis to an offsite commercial laboratory and results were compared
to the in-house data.
The two CCO units were operated using a batch process. Prior to
each batch, the mixed waste sample was analyzed in-house to identify
each organic chemical constituent and its relative concentration. In
many cases, these data were used to create an identical surrogate
sample which was also then analyzed in-house prior to treatment. After
treatment, the radioactive treatment residue was analyzed in-house to
identify any remaining organic chemical constituents. LBNL analyzed the
surrogate treatment residues (non-radioactive) in-house and sent splits
of the same surrogate residues offsite to a commercial laboratory for
analysis. LBNL treated and then analyzed a total of approximately 71
batches of mixed waste samples and 15 batches of surrogate samples.
These samples represent 100% of all wastes treated by LBNL during the
treatability study. Additionally, LBNL analyzed two bubbler water
samples from two different batches of surrogate sample treatment in-
house.
As part of the delisting petition, LBNL submitted seven sets of
analytical data from mixed waste samples, six sets of data from
surrogate waste samples, and two sets of data from the bubbler water.
LBNL chose these sets of data as representative of the total data set.
LBNL also made available to EPA all of the remaining analytical data
from the treatability study. For the in-house testing data, LBNL
provided the experimental data documentation from the operation of the
CCO, and the test results (GC chromatograms).
LBNL's in-house testing method used direct liquid injection gas
chromatography to minimize the volume of the sample. The LBNL method
used two detectors, an MS and an FID. Together, these detectors can
detect all organic compounds in 40 CFR Part 261, Appendix VIII
including those that were present in the original mixed waste and
surrogate samples prior to treatment. LBNL also tested all samples for
pH in-house using pH strips. LBNL did not test for inorganic or metal
compounds because, based upon the processes and chemicals that LBNL
used to produce these wastes, these compounds were not present in the
original mixed waste or surrogate samples.
The surrogate samples that were sent to an off-site commercial
analytical laboratory were analyzed by EPA Test Methods 8015 (modified)
for Industrial Solvents and Method 8260 for Volatile Organic Compounds.
Several samples were also tested by Method 8270 for Base Neutral and
Acid Extractable Organic Compounds (semivolatile compounds).
E. What Were the Results of LBNL's Analysis?
There were no organic compounds above LBNL's quantitation limits in
any of the treatment residues or in the bubbler water from the
treatment of the original mixed wastes. LBNL's in-house testing
procedures were able to achieve a quantitation limit in the range of
0.1 to 0.5 parts per million (ppm).
With the exception of chloroform in very low concentrations (up to
0.011 ppm) in a few samples, detectable organic compounds were not
detected in any of the surrogate (non-radioactive) treatment residues.
Because chloroform was not present in the original surrogate samples
prior to treatment, the chloroform is a laboratory contaminant
introduced by the offsite commercial laboratory.
On the basis of generator knowledge, LBNL did not test for
inorganic constituents as no inorganic constituents were used in the
processes that produced the original mixed waste.
All of the analytical results indicate that the treatment residues
are water (with tritium in the radioactive samples) and therefore do
not exhibit the hazardous waste characteristics of toxicity;
reactivity; or ignitability. As discussed previously, LBNL measured the
pH on all treatment residues. The pH ranged from 5 to 9 and therefore
none of the residues exhibited the hazardous waste characteristic of
corrosivity.
EPA does not generally validate submitted test data before
proposing delisting decisions. The sworn affidavit
[[Page 49654]]
submitted with the petition binds the petitioner to present truthful
and accurate results under penalty of perjury. LBNL submitted a signed
Certification of Accuracy and Responsibility statement required by 40
CFR 260.22(i)(12).
F. How Did EPA Evaluate the Risk of Delisting the Petitioned Waste?
In order for EPA to delist a particular waste, the petitioner must
demonstrate: (1) The waste does not meet any of the criteria under
which the waste was listed, (2) the waste does not exhibit any of the
hazardous waste characteristics defined in 40 CFR 261.21 through
261.24, and (3) there are no additional constituents in the waste other
than those for which it was listed, that would cause the waste to be a
hazardous waste (40 CFR 260.22(a)). For petitioned wastes that contain
detectable chemical constituents, EPA generally makes this
determination by gathering information to identify plausible routes of
human or environmental exposure (i.e., groundwater, surface water, air)
and using fate and transport models to predict the release of hazardous
constituents from the petitioned waste once it is disposed. The
transport model predicts potential exposures and impacts of the
petitioned waste on human health and the environment. The model that
EPA uses is a Windows-based software tool, the Delisting Risk
Assessment Software (DRAS) Program. The DRAS program estimates the
potential releases of waste constituents and predicts the risk
associated with those releases using several EPA models including the
EPACMTP (EPA's Composite Model for leachate migration with
Transformation Products) 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.
For this petition, EPA believes that LBNL has met the three
criteria listed in 40 CFR 260.22(a). For our review, it was not
necessary to use the DRAS model because this waste does not contain any
detectable concentrations of chemical constituents other than water and
tritium (which is not an EPA RCRA regulated waste constituent subject
to delisting).
G. What Other Factors Did EPA Consider in Its Evaluation of These
Petitions?
We considered other agencies' regulatory controls that would apply
to the petitioned waste. The waste proposed for delisting is tritiated
water which is a low-level radioactive waste. The waste was generated
at a DOE facility and therefore is subject to DOE regulation. If
delisted, the waste must be disposed in an NRC-licensed or DOE
authorized low-level radioactive waste disposal facility. Because NRC/
DOE low-level radioactive waste disposal facilities cannot accept RCRA
hazardous waste, the waste must be delisted from RCRA before it can be
disposed. If the waste is not delisted, then LBNL must continue to
store the waste in their RCRA permitted storage facility (onsite) until
such time as a viable disposal alternative is available for the waste.
We also considered the regulatory controls over the operation of
the CCO unit. The waste proposed for delisting is treatment residues
from catalytic chemical oxidation of mixed waste. LBNL operated the CCO
unit under a California State RCRA treatability study exclusion (22 CCR
66261.4(e) and (f)) that provides a conditional exclusion from the
hazardous waste regulations. This exclusion is designed to allow small
volume studies of new technologies for treatment of hazardous wastes.
Once a volume limit has been reached, facilities must obtain a RCRA
hazardous waste treatment permit to continue using the treatment
technology. The State of California Department of Toxic Substances
Control (DTSC), who is the authorized RCRA regulatory authority with
jurisdiction over this facility, conducted an extensive investigation
of the CCO process and concluded that it was operated in compliance
with the treatability study exclusion. LBNL has concluded its
treatability study of the CCO process and is no longer using this
technology, therefore, there will be no need to seek a permit in the
future.
H. What Did EPA Conclude About LBNL's Analysis?
After reviewing LBNL's petition, EPA concludes that: (1) No RCRA
hazardous constituents are likely to be present above detection limits
in the treatment residues or the bubbler water on silica gel generated
by catalytic chemical oxidation treatment of the original mixed waste
at LBNL, 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.
We conclude that the waste is delistable because the exposure
threat to RCRA hazardous constituents is not existent, therefore
achieving a de minimus risk level. Further, even though they are no
longer subject to EPA regulatory control, the treatment residues
maintain their low-level radioactive waste status and must still be
managed in accordance with DOE orders and NRC regulations. By removing
EPA regulatory control over this waste, LBNL has the option to dispose
the waste offsite at a DOE authorized or an NRC licensed disposal
facility.
We also conclude that LBNL has adequately demonstrated that the CCO
process is equivalent to combustion for the treatment of organic
wastes. This demonstration is based primarily on the following key
factors: (1) The CCO achieves a destruction and removal efficiency of
more than 99.999% at a temperature near or above 500 deg.C, (2) the CCO
system does not emit HCl or particulate matter, and (3) the CCO was
operated in compliance with Federal, State and local hazardous waste
and air emission regulations.
I. What Is EPA's Final Evaluation of These Petitions?
We have reviewed the sampling procedures used by LBNL and have
determined they satisfy EPA criteria for collecting representative
samples of the petitioned waste. The descriptions of the treatment
process and the analytical data, together with the NRC/DOE requirements
that the petitioned waste be managed as low-level radioactive waste,
provide a reasonable basis for EPA to grant both the delisting and the
DET petitions. We believe the data submitted in support of the
petitions show that the waste will not pose a threat when managed as a
non-hazardous low-level radioactive waste and disposed of in an NRC-
licensed or DOE-authorized low level radioactive waste disposal
facility. We therefore propose to grant LBNL an exclusion and a DET for
the waste generated by CCO treatment at LBNL.
If we finalize these proposed petitions, 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
The petitioner, LBNL, must comply with the requirements in 40 CFR
part 261, Appendix IX, Table 1. The text below gives the rationale and
details of those requirements.
A. What Conditions Are Associated With This Exclusion?
If the proposed exclusion is made final, it will apply only to 200
US gallons of petitioned waste at LBNL. This is a one-time exclusion
for this waste. We would require LBNL to file a new delisting petition
if it generates more than 200 US gallons of waste.
[[Page 49655]]
LBNL must manage waste volumes greater than 200 US gallons as mixed
waste unless and until we grant a new exclusion. If this exclusion
becomes final, LBNL's management of the wastes covered by this petition
would no longer be within RCRA Subtitle C jurisdiction.
If delisted, the treatment residues would still be low-level
radioactive waste subject to NRC regulations and DOE orders. DOE orders
require that the petitioned waste be solidified to help prevent
mobilization of the tritium. NRC regulations and DOE orders also
require that the waste be transported to, and disposed by, NRC-licensed
or DOE-authorized facilities. While EPA has no regulatory authority
over disposal of radioactive-only wastes, we do have authority to
prescribe that the delisted waste be managed and disposed in a manner
consistent with our analysis of the acceptable risk for this waste. Our
risk analysis is based upon the assumption that the waste, once
delisted, remains a low-level radioactive waste subject to DOE Orders
and NRC regulations. We therefore propose to condition the delisting
upon LBNL properly managing and disposing the waste in accordance with
applicable NRC regulations or DOE orders as applicable.
If LBNL discovers that a condition or assumption related to the
characterization of this waste that was used in the evaluation of this
petition is not as reported in the petition, they will be required to
report any information relevant to that condition or assumption in
writing to the Regional Administrator within 10 calendar days of
discovering that condition.
The purpose of this condition is to require LBNL to disclose new or
different information that may be pertinent to the delisting. This
provision will allow us to reevaluate the exclusion based on this new
information in order to determine if our original decision was correct.
If we discover such information from any source, we will act on it
as appropriate. Further action may include repealing the exclusion,
modifying the exclusion, or other appropriate action deemed necessary
to protect human health or the environment. EPA has the authority under
RCRA and the Administrative Procedures Act, 5 U.S.C. 551 et seq. to
reopen the delisting under the conditions described above.
In order to adequately track wastes that have been delisted, we
will require that LBNL provide a one-time notification to any State
regulatory agency to which or through which the delisted waste will be
transported for disposal. LBNL will be required to provide this
notification at least 60 calendar days prior to commencing these
activities. Failure to provide such notification will be a violation of
the delisting, and may be grounds for revocation of the exclusion or
enforcement.
B. What Happens if LBNL Fails to Meet the Conditions of the Exclusion?
If LBNL violates the terms and conditions established in the
exclusion, the Agency may start procedures to suspend or revoke the
exclusion, and/or initiate enforcement actions.
V. Effect on State Authorizations
This proposed exclusion, if promulgated, would be issued under the
Federal RCRA delisting program. States, however, may impose more
stringent regulatory requirements than EPA 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 State.
Because a petitioner's waste may be regulated under a dual system
(i.e., both Federal (RCRA) and State (RCRA) or State (non-RCRA)
programs), petitioners are urged to contact State regulatory
authorities to determine the current status of their wastes under the
State laws.
Furthermore, some States are authorized to administer a delisting
program in lieu of the Federal program (i.e., to make their own
delisting decisions). Therefore, this proposed exclusion, if
promulgated, may not apply in those authorized States, unless it is
adopted by the State. If the petitioned waste is managed in any State
with delisting authorization, LBNL must obtain delisting authorization
from that State before the waste may be managed as nonhazardous in that
State.
VI. Effective Date
EPA is today proposing to grant LBNL's petition. This proposed
rule, if made final, will become effective immediately upon such final
publication. The Hazardous and Solid Waste Amendments of 1984 amended
Section 3010 of RCRA to allow rules to become effective in less than
six months when the regulated community does not need the six-month
period to come into compliance. That is the case here, because this
rule, if finalized, would reduce the existing requirements for a
facility generating hazardous wastes. 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 APA, 5 U.S.C. 553(d).
VII. Administrative Requirements
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.).
List of Subjects in 40 CFR Part 261
Hazardous waste, Recycling, and Reporting and recordkeeping
requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: July 11, 2002.
Wayne Nastri,
Regional Administrator, Region IX.
For the reasons set out in the preamble, 40 CFR Part 261 is
proposed to be amended as follows:
[[Page 49656]]
PART 261--IDENTIFICATION AND LISTING 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 1, of Appendix IX of 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 1.--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste Description
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
Lawrence Berkeley National Berkeley, California........... Treated ignitable and spent halogenated and
Laboratory. non-halogenated solvent mixed waste (D001,
F002, F003, and F005), and bubbler water on
silica gel generated during treatment at the
National Tritium Labeling Facility (NTLF) of
the Lawrence Berkeley National Laboratory
(LBNL). This is a one-time exclusion for 200
US gallons of treatment residues that will be
disposed of in a Nuclear Regulatory
Commission (NRC) licensed or Department of
Energy (DOE) approved low-level radioactive
waste disposal facility, after [publication
date of the final rule in the FEDERAL
REGISTER]. (1) Waste Management: The treated
waste residue and bubbler water on silica gel
must be managed in accordance with DOE or NRC
requirements prior to and during disposal.
(2) Reopener Language: (A) If, anytime after
disposal of the delisted waste, LBNL
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
organic constituent from the waste is
detected in the leachate or the groundwater,
then LBNL 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 (2)(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. (C) If the Regional
Administrator determines that the reported
information does require Agency action, the
Regional Administrator will notify LBNL NTLF
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
LBNL with an opportunity to present
information as to why the proposed Agency
action is not necessary or to suggest an
alternative action. LBNL shall have 30 days
from the date of the Regional Administrator's
notice to present the information. (D) If
after 30 days LBNL 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. (3) Notification Requirements:
LBNL must do the following before
transporting the delisted waste off-site: (A)
Provide a one-time written notification to
any State Regulatory Agency to which or
through which they will transport the
delisted waste described above for disposal,
60 days before beginning such activities. (B)
Update the one-time written notification if
LBNL ships the delisted waste to a different
disposal facility. Failure to provide this
notification will result in a violation of
the delisting petition and a possible
revocation of the exclusion.
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 02-19325 Filed 7-30-02; 8:45 am]
BILLING CODE 6560-50-P