[Federal Register Volume 69, Number 34 (Friday, February 20, 2004)]
[Proposed Rules]
[Pages 7888-7897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-3600]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FRL-7625-2]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Proposed Exclusion
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule and request for comment.
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SUMMARY: The EPA is proposing to grant a petition submitted by Bekaert
Corporation (Bekaert) to exclude (or delist) a certain solid waste
generated by its Dyersburg, Tennessee, facility from the lists of
hazardous wastes.
The EPA used the Delisting Risk Assessment Software (DRAS) in the
evaluation of the impact of the petitioned waste on human health and
the environment.
The EPA bases its proposed decision to grant the petition on an
evaluation of waste-specific information provided by the petitioner.
This proposed decision, if finalized, would exclude the petitioned
waste from the requirements of hazardous waste regulations under the
Resource Conservation and Recovery Act (RCRA).
If finalized, the EPA would conclude that Bekaert's petitioned
waste is nonhazardous with respect to the original listing criteria and
that the generation of an F006 hazardous waste sludge from the
treatment of waste waters from electroplating processes performed by
the facility will not be hazardous at the point of generation because
of the adequately reduced likelihood of migration of constituents from
this waste. The EPA would also conclude that Bekaert's process
minimizes short-term and long-term threats from the petitioned waste to
human health and the environment.
DATES: The EPA will accept comments until April 5, 2004. The EPA will
stamp comments received after the close of the comment period as late.
These late comments may not be considered in formulating a final
decision. Your requests for a hearing must reach the EPA by March 8,
2004. The request
[[Page 7889]]
must contain the information prescribed in 40 CFR 260.20(d).
ADDRESSES: Please send three copies of your comments. You should send
two copies to the Chief, North Section, RCRA Enforcement and Compliance
Branch, Waste Division, U.S. Environmental Protection Agency Region 4,
61 Forsyth Street SW., Atlanta, Georgia, 30303. You should send a third
copy to Mike Apple, Director, Division of Solid Waste Management,
Tennessee Department of Environment and Conservation, 5th Floor, L&C
Tower, 401 Church Street, Nashville, Tennessee, 37243-1535. Identify
your comments at the top with this regulatory docket number: R4DLP-
0401-Bekaert. You may submit your comments electronically to Daryl
Himes at [email protected].
You should address requests for a hearing to Jewell Grubbs, Chief,
RCRA Enforcement and Compliance Branch, Waste Division, U.S.
Environmental Protection Agency Region 4, Atlanta Federal Center, 61
Forsyth Street SW., Atlanta, Georgia 30303.
FOR FURTHER INFORMATION CONTACT: For general and technical information
about this final rule, contact Daryl Himes, South Enforcement and
Compliance Section (Mail Code 4WD-RCRA), RCRA Enforcement and
Compliance Branch, U.S. Environmental Protection Agency, Region 4, Sam
Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia
30303 or call (404) 562-8614.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What action is the EPA proposing?
B. Why is the EPA proposing to approve this delisting?
C. How will Bekaert manage the waste if it is delisted?
D. When would the proposed delisting exclusion be finalized?
E. How would this action affect States?
II. Background
A. What is the history of the delisting program?
B. What is a delisting petition, and what does it require of a
petitioner?
C. What factors must the EPA consider in deciding whether to
grant a delisting petition?
III. The EPA's Evaluation of the Waste Information and Data
A. What wastes did Bekaert petition the EPA to delist?
B. Who is Bekaert and what process do they use to generate the
petition waste?
C. How did Bekaert sample and analyze the data in this petition?
D. What were the results of Bekaert's analysis?
E. How did the EPA evaluate the risk of delisting this waste?
F. What did the EPA conclude about Bekaert's analysis?
G. What other factors did the EPA consider in its evaluation?
H. What is the EPA's evaluation of this delisting petition?
IV. Next Steps
A. With what conditions must the petitioner comply?
B. What happens if Bekaert violates the terms and conditions?
V. Public Comments
A. How may I as an interested party submit comments?
B. How may I review the docket or obtain copies of the proposed
exclusions?
VI. Regulatory Impact
VII. Regulatory Flexibility Act
VIII. Paperwork Reduction Act
IX. Unfunded Mandates Reform Act
X. Executive Order 13045
XI. Executive Order 13084
XII. National Technology Transfer and Advancement Act
XIII. Executive Order 13132 Federalism
I. Overview Information
A. What Action Is the EPA Proposing?
The EPA is proposing to grant the delisting petition submitted by
Bekaert to have its dewatered waste water treatment plant (WWTP) sludge
(F006 listed hazardous waste) excluded, or delisted, from the
definition of a hazardous waste.
B. Why Is the EPA Proposing To Approve This Delisting?
Bekaert's petition requests a delisting for the dewatered
wastewater treatment plant (wwtp) sludge which result from the
treatment of waste waters generated as a result of its electroplating
operations. Bekaert does not believe that the petitioned waste meets
the criteria for which the EPA listed it. Bekaert also believes no
additional constituents or factors could cause the waste to be
hazardous. The EPA's review of this petition included consideration of
the original listing criteria, and the additional factors required by
the Hazardous and Solid Waste Amendments of 1984 (HSWA). See section
3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(1)-(4). In
making the initial delisting determination, the EPA evaluated the
petitioned waste against the listing criteria and factors cited in
Sec. 261.11(a)(2) and (a)(3). Based on this review, the EPA agrees
with the petitioner that the waste is nonhazardous with respect to the
original listing criteria. (If the EPA had found, based on this review,
that the waste remained hazardous based on the factors for which the
waste was originally listed, the EPA would have proposed to deny the
petition.) The EPA evaluated the waste with respect to other factors or
criteria to assess whether there is a reasonable basis to believe that
such additional factors could cause the waste to be hazardous. The EPA
considered whether the waste is acutely toxic, the concentration of the
constituents in the waste, their tendency to migrate and to
bioaccumulate, their persistence in the environment once released from
the waste, plausible and specific types of management of the petitioned
waste, the quantities of waste generated, and waste variability. The
EPA believes that the petitioned waste does not meet the listing
criteria and thus should not be a listed waste. The EPA's proposed
decision to delist waste from the Bekaert facility is based on the
information submitted in support of this rule, including descriptions
of the wastes and analytical data from the Dyersburg, Tennessee
facility.
C. How Will Bekaert Manage the Waste if It Is Delisted?
Bekaert currently sends the petitioned waste to a hazardous waste
landfill. If the delisting exclusion is finalized, Bekaert intends to
dispose of the petitioned waste (i.e., dewatered WWTP sludge) in a
subtitle D solid waste landfill in the State of Tennessee.
D. When Would the Proposed Delisting Exclusion Be Finalized?
RCRA section 3001(f) specifically requires the EPA to provide
notice and an opportunity for comment before granting or denying a
final exclusion. Thus, the EPA will not grant the exclusion until it
addresses all timely public comments (including those at public
hearings, if any) on this proposal.
RCRA section 3010(b)(1) at 42 U.S.C. 6930(b)(1), allows rules to
become effective in less than six months after the EPA addresses public
comments when the regulated facility 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 persons
generating hazardous wastes.
The EPA believes that this exclusion should be effective
immediately upon final publication because a six-month deadline is not
necessary to achieve the purpose of section 3010(b), and a later
effective date would impose unnecessary hardship and expense on this
petitioner. These reasons also provide good cause for making this rule
effective immediately, upon final publication, under the Administrative
Procedure Act, 5 U.S.C. 553(d).
[[Page 7890]]
E. How Would This Action Affect the States?
Because the EPA is issuing this exclusion under the Federal RCRA
delisting program, only States subject to Federal RCRA delisting
provisions would be affected. This would exclude States who have
received authorization from the EPA to make their own delisting
decisions.
The EPA allows the States to impose their own non-RCRA regulatory
requirements that are more stringent than the EPA's, under section 3009
of RCRA, 42 U.S.C. 6929. 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, the EPA urges petitioners to contact the state regulatory
authority to establish the status of their wastes under the State law.
Delisting petitions approved by the EPA Administrator under 40 CFR
260.22 are effective in the State of Tennessee only after the final
rule has been published in the Federal Register.
II. Background
A. What Is the History of the Delisting Program?
The EPA published an amended list of hazardous wastes from
nonspecific and specific sources on January 16, 1981, as part of its
final and interim final regulations implementing section 3001 of RCRA.
The EPA has amended this list several times and published it in
Sec. Sec. 261.31 and 261.32. The EPA lists these wastes as hazardous
because: (1) They typically and frequently exhibit one or more of the
characteristics of hazardous wastes identified in subpart C of part 261
(that is, ignitability, corrosivity, reactivity, and toxicity) or (2)
they meet the criteria for listing contained in Sec. 261.11(a)(2) or
(a)(3).
Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
described in these regulations generally is hazardous, a specific waste
from an individual facility meeting the listing description may not be
hazardous.
For this reason, Sec. Sec. 260.20 and 260.22 provide an exclusion
procedure, called delisting, which allows persons to prove that the EPA
should not regulate a specific waste from a particular generating
facility as a hazardous waste.
B. What Is a Delisting Petition, and What Does It Require of a
Petitioner?
A delisting petition is a request from a facility to the EPA or an
authorized State to exclude wastes from the list of hazardous wastes.
The facility petitions the EPA because it does not consider the wastes
hazardous under RCRA regulations.
In a delisting petition, the petitioner must show that wastes
generated at a particular facility do not meet any of the criteria for
which the waste was listed. The criteria for which the EPA lists a
waste are in part 261 and further explained in the background documents
for the listed waste.
In addition, under Sec. 260.22, a petitioner must prove that the
waste does not exhibit any of the hazardous waste characteristics (that
is, ignitability, reactivity, corrosivity, and toxicity) and present
sufficient information for the EPA to decide whether factors other than
those for which the waste was listed warrant retaining it as a
hazardous waste. (See part 261 and the background documents for the
listed waste.)
Generators remain obligated under RCRA to confirm whether their
waste remains nonhazardous based on the hazardous waste characteristics
even if the EPA has ``delisted'' the waste.
C. What Factors Must the EPA Consider in Deciding Whether To Grant a
Delisting Petition?
Besides considering the criteria in Sec. 260.22(a) and section
3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for
the listed wastes, the EPA must consider any factors (including
additional constituents) other than those for which the EPA listed the
waste if a reasonable basis exists that these additional factors could
cause the waste to be hazardous.
The EPA must also consider as hazardous waste mixtures containing
listed hazardous wastes and wastes derived from treating, storing, or
disposing of listed hazardous waste. See Sec. 261.3(a)(2)(iii) and
(iv) and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules,
respectively. These wastes are also eligible for exclusion and remain
hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).
III. The EPA's Evaluation of the Waste Information and Data
A. What Waste Did Bekaert Petition the EPA To Delist?
On October 28, 2002, Bekaert petitioned the EPA to exclude from the
lists of hazardous waste contained in Sec. Sec. 261.31 and 261.32, a
dewatered WWTP sludge generated from the facility located in Dyersburg,
Tennessee. The waste (EPA Hazardous Waste No. F006) is generated by
treating wastewater from the copper and zinc electroplating of steel
cords for the automobile tire industry. Specifically, in its petition,
Bekaert requested that the EPA grant an exclusion for 1250 cubic yards
per calendar year of dewatered WWTP sludge resulting from the treatment
of waste waters from an electroplating operation at its facility.
B. Who Is Bekaert and What Process Do They Use To Generate the Petition
Waste?
Bekaert is a facility located in an industrial setting in the
northeast portion of the City of Dyersburg, Tennessee.
Bekaert produces cabled wire which is a major component in the
production of steel belted radial tires. The incoming ``raw material''
from which the wire is drawn is two (2) ton spools of high carbon steel
wire rod. As part of the production process, the drawn wire is plated
with copper and zinc. Treatment of the waste waters which result from
the electroplating process result in the generation of sludges which
are classified as F006 listed hazardous wastes pursuant to 40 CFR
261.31. The 40 CFR part 261, appendix VII hazardous constituents for
which F006 hazardous wastes are listed include cadmium, hexavalent
chromium, nickel, and cyanide (complexed).
C. How Did Bekaert Sample and Analyze the Data in This Petition?
To support its petition, Bekaert submitted:
(1) Results of the total constituent analysis for metals;
(2) Results of the Toxicity Characteristic Leaching Procedure
(TCLP) extract for the following: volatile and semivolatile organics,
pesticides, herbicides, and metals.
D. What Were the Results of Bekaert's Analyses?
The EPA believes that the descriptions of Bekaert's dewatered WWTP
sludge, in addition to the data submitted in support of the petition
show that the dewatered WWTP sludge is nonhazardous. Analytical data
from Bekaert's dewatered WWTP sludge samples were used for evaluation
in the Delisting Risk Assessment Software. The data summaries for
detected constituents are presented in Table I. The EPA has reviewed
the sampling procedures used by Bekaert and has determined they satisfy
the EPA's
[[Page 7891]]
criteria for collecting representative samples of the variations in
constituent concentrations in the hazardous waste water treatment
sludge. The data submitted in support of the petition show that
constituents in Bekaert's waste are presently below health-based levels
used in the delisting decision-making. The EPA believes that Bekaert
has successfully demonstrated that the dewatered WWTP sludge is
nonhazardous.
Table 1.--Maximum TCLP Constituent Concentrations of the Stabilized Hazardous Dewatered WWTP Sludge and
Corresponding Delisting Limits \1\
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TCLP Maximum
Total constituent leachate allowable
Constituent analyses (mg/kg) conc. (mg/ TCLP conc.
l) (mg/l)
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Antimony........................................................... <7.4 ND 0.922
Arsenic............................................................ <7.9 ND 0.0419
Barium............................................................. 300 ND 100
Cadmium............................................................ <8.4 ND 0.672
Chromium........................................................... 85.3 ND 5.0
Copper............................................................. 1200 ND 4710
Lead............................................................... 19.6 ND 5.0
Mercury............................................................ <0.04938 ND 0.2
Nickel............................................................. 109 ND 127
Selenium........................................................... <4.94 ND 1.0
Silver............................................................. <7.9 ND 5.0
Zinc............................................................... 27,700 74 1260
2,4-D.............................................................. ................. ND 5.96
2,4,5-TP (Silvex).................................................. ................. ND 1.0
Benzene............................................................ ................. ND 0.806
................. ND 0.560
Chlorobenzene...................................................... ................. ND 8.51
Chloroform......................................................... ................. ND 1.09
1,4-Dichlorobenzene................................................ ................. ND 2.46
1,2-Dichloroethane................................................. ................. ND 0.5
1,1-Dichloroethene................................................. ................. ND 0.0982
Methyl ethyl ketone................................................ ................. 8.71 200
Tetrachloroethene.................................................. ................. ND 0.425
Trichloroethene.................................................... ................. ND 0.5
Vinyl Chloride..................................................... ................. ND 0.0415
Cresols............................................................ ................. ND 200
m-Cresol........................................................... ................. ND 200
m-,p-Cresols....................................................... ................. ND 200
Pentachlorophenol.................................................. ................. ND 100
2,4,5-Trichlorophenol.............................................. ................. ND 400
2,4,6-Trichlorophenol.............................................. ................. ND 2.0
2,4-Dinitrotoluene................................................. ................. ND 0.0915
Hexachlorobenzene.................................................. ................. ND 0.00295
Hexachlorobutadiene................................................ ................. ND 0.5
Hexachloroethane................................................... ................. ND 1.38
Nitrobenzene....................................................... ................. ND 2.0
Pyridine........................................................... ................. ND 3.19
g-BHC (Lindane).................................................... ................. ND 0.003
Chlordane.......................................................... ................. ND 0.0156
Endrin............................................................. ................. ND 0.02
Heptachlor......................................................... ................. ND 0.08
Heptachlor epoxide................................................. ................. ND 0.08
Methoxychlor....................................................... ................. ND 10
Toxaphene.......................................................... ................. ND 0.05
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\1\ These levels represent the highest concentration of each constituent found in any one sample. These levels
do not necessarily represent the specific levels found in one sample.
ND--Denotes that the constitutent was not detected.
E. How Did the EPA Evaluate the Risk of Delisting This Waste?
For this delisting determination, we assumed that the waste would
be disposed in a Subtitle D landfill and we considered transport of
waste constituents through ground water, surface water and air. We
evaluated Bekaert's petitioned waste using the Agency's Delisting Risk
Assessment Software (DRAS) to predict the concentration of hazardous
constituents that might be released from the petitioned waste and to
determine if the waste would pose a threat. The DRAS uses EPA's
Composite Model for leachate migration with Transformation Products
(EPACMTP) to predict the potential for release to groundwater from
landfilled wastes and subsequent routes of exposure to a receptor. From
a release to ground water, we considered routes of exposure to a human
receptor of ingestion of contaminated ground water, inhalation from
groundwater via showering and dermal contact while bathing. The DRAS
program considers the surface water pathway by erosion of waste from
run-off from an open landfill. It evaluates the subsequent routes of
exposure to a human receptor from such releases through exposure
pathways of
[[Page 7892]]
fish ingestion and ingestion of drinking water. DRAS also considers
releases of waste particles and volatile emissions to air from the
surface of an open landfill. From a release to air, we considered
routes of exposures of inhalation of particulates and absorption into
the lungs, ingestion of particulates eliminated from respiratory
passages and subsequently swallowed, air deposition of particulates and
subsequent ingestion of the soil/waste mixture, and inhalation of
volatile constituents.
We used the maximum estimated waste volume and the maximum reported
total and leachate concentration as inputs to estimate the constituent
concentrations in the ground water, soil, surface water or air.
Assuming a cancer risk of 1 x 10-5 and a hazard quotient of one,
the DRAS program back calculated a maximum allowable concentration
level which would not exceed protective levels in both the waste and
the leachate for each constituent at the given annual waste volume of
1,250 cubic yards.
F. What Did the EPA Conclude About Bekaert's Analysis?
The EPA concluded, after reviewing Bekaert's processes that no
other hazardous constituents of concern, other than those for which the
testing was completed, are likely to be present or formed as reaction
products or by-products in Bekaert's wastes. In addition, on the basis
of explanations and analytical data provided by Bekaert, pursuant to
Sec. 260.22, the EPA concludes that the petitioned wastes do not
exhibit any of the characteristics of ignitability, corrosivity, or
reactivity. See Sec. Sec. 261.21, 261.22 and 261.23, respectively.
G. What Other Factors Did the EPA Consider in Its Evaluation?
During the evaluation of this petition, the EPA also considered the
potential impact of the petitioned waste via non-ground water routes
(i.e., air emission and surface runoff). With regard to airborne
dispersion in particular, the EPA believes that exposure to airborne
contaminants from the petitioned waste is unlikely. Therefore, no
appreciable air releases are likely from the dewatered WWTP sludge
under any likely disposal conditions. The EPA evaluated the potential
hazards resulting from the unlikely scenario of airborne exposure to
hazardous constituents released from the waste water treatment sludge
in an open landfill. The results of this worst-case analysis indicated
that there is no substantial present or potential hazard to human
health and the environment from airborne exposure to constituents from
the hazardous waste water treatment sludge.
The EPA also considered the potential impact of the petitioned
waste via a surface water route. The EPA believes that containment
structures at municipal solid waste landfills can effectively control
surface water runoff, as the Subtitle D regulations (See 56 FR 50978,
October 9, 1991) prohibit pollutant discharges into surface waters.
Furthermore, the concentrations of any hazardous constituents dissolved
in the runoff will tend to be lower than the levels in the TCLP
leachate analyses reported in this proposal due to the aggressive
acidic medium used for extraction in the TCLP. The EPA believes that,
in general, leachate derived from the waste is unlikely to directly
enter a surface water body without first traveling through the
saturated subsurface where dilution and attenuation of hazardous
constituents will also occur. Leachable concentrations provide a direct
measure of solubility of a toxic constituent in water and are
indicative of the fraction of the constituent that may be mobilized in
surface water as well as ground water.
Based on the reasons discussed above, the EPA believes that the
contamination of surface water through runoff from the waste disposal
area is very unlikely. Nevertheless, the EPA evaluated the potential
impacts on surface water if the dewatered WWTP sludge were released
from a municipal solid waste landfill through runoff and erosion. The
estimated levels of the hazardous constituents of concern in surface
water would be well below health-based levels for human health, as well
as below the EPA Chronic Water Quality Criteria for aquatic organisms
(US EPA, OWRS, 1987). The EPA, therefore, concluded that this hazardous
waste water treatment sludge is not a present or potential substantial
hazard to human health and the environment via the surface water
exposure pathway.
H. What Is the EPA's Evaluation of This Delisting Petition?
The descriptions by Bekaert of the hazardous waste process and
analytical characterization, with the proposed verification testing
requirements (as discussed later in this proposal), provide a
reasonable basis for the EPA to grant the exclusion. The data submitted
in support of the petition show that constituents in the waste are
below the maximum allowable leachable concentrations (see table 1). The
EPA believes that the dewatered WWTP sludge generated by Bekaert
contains hazardous constituents at levels which will present minimal
short-term and long-term threats from the petitioned waste to human
health and the environment.
Thus, the EPA believes that it should grant to Bekaert an exclusion
for the dewatered WWTP sludge. The EPA believes the data submitted in
support of the petition shows the Bekaert dewatered WWTP sludge to be
nonhazardous.
The EPA has reviewed the sampling procedures used by Bekaert and
has determined they satisfy the EPA's criteria for collecting
representative samples of variable constituent concentrations in the
dewatered WWTP sludge. The data submitted in support of the petition
show that constituents in Bekaert's waste are presently below the
compliance point concentrations used in the delisting decision-making
process and would not pose a substantial hazard to the environment. The
EPA believes that Bekaert has successfully demonstrated that the
dewatered WWTP sludge is nonhazardous.
The EPA therefore proposes to grant an exclusion to Bekaert, in
Dyersburg, Tennessee, for the dewatered WWTP sludge described in its
petition. The EPA's decision to exclude this waste is based on analysis
performed on samples taken of the dewatered WWTP sludge.
If the EPA finalizes the proposed rule, the EPA will no longer
regulate the dewatered WWTP sludge under parts 262 through 268 and the
permitting standards of part 270.
IV. Next Steps
A. With What Conditions Must the Petitioner Comply?
The petitioner, Bekaert, must comply with the requirements in 40
CFR part 261, appendix IX, table 1 as amended by this proposal. The
text below gives the rationale and details of those requirements.
(1) Delisting Levels
This paragraph provides the levels of constituents for which
Bekaert must test the leachate from the dewatered WWTP sludge; the
leachate must conform to the standards described below to be considered
nonhazardous.
The EPA selected the set of inorganic and organic constituents
specified in paragraph (1) and listed in 40 CFR part 261, appendix IX,
table 1, based on information in the petition. The EPA compiled the
inorganic and organic constituents list from descriptions of the
manufacturing process used by Bekaert, previous test data provided for
the waste, and the respective health-based
[[Page 7893]]
levels used in delisting decision-making. These delisting levels
correspond to the allowable levels measured in the TCLP extract and
total concentrations of the waste.
(2) Waste Holding and Handling
The purpose of this paragraph is to ensure that Bekaert manages and
disposes of any dewatered WWTP sludge that might contain hazardous
levels of inorganic and organic constituents according to Subtitle C of
RCRA. Holding the dewatered WWTP sludge until characterization is
complete will protect against improper handling of hazardous material.
(3) Verification Testing Requirements
Bekaert must complete a verification testing program on the
dewatered WWTP sludge to assure that the dewatered WWTP sludge does not
exceed the maximum levels specified in paragraph (1). If the EPA
determines that the data collected under this paragraph does not
support the data provided for in the petition, the exclusion will not
cover the tested waste. This verification program operates on a
quarterly basis followed by an annual basis. The first part of the
verification testing program consists of testing the dewatered WWTP
sludge for specified indicator parameters as per paragraph (1) on a
quarterly basis. The quarter testing will be performed for four (4)
quarters by taking a composite sample consisting of four (4) grab
samples from an individual roll-off container once this rule is final.
The first sample can be taken at any time following this rule being
final. The remaining quarterly samples shall be taken at ninety (90)
day intervals from the taking of the first quarterly sample. If any
roll-off fails to meet the specified limits, then Bekaert must dispose
of the waste as hazardous.
The second part of the verification testing program is the annual
testing of one composite samples of dewatered WWTP sludge for all
constituents specified in paragraph (1). The first and subsequent
annual tests should coincide with the month during which the final
quarterly test was performed. If the annual testing of the waste does
not meet the delisting requirements in paragraph (1), Bekaert must
notify the EPA according to the requirements in paragraph (6). The EPA
will then take the appropriate actions necessary to protect human
health and the environment per paragraph (6).
The exclusion is effective upon publication in the Federal Register
but the disposal cannot begin until the first quarterly verification
sampling is completed and is approved by EPA. Disposal is also not
authorized if Bekaert fails to perform the quarterly and yearly testing
as specified herein. Should Bekaert fail to conduct the quarterly/
yearly testing as specified herein, then disposal of dewatered WWTP
sludge as delisted waste may not occur in the following quarter(s)/
year(s) until Bekaert obtains the written approval of the EPA.
(4) Changes in Operating Conditions
Paragraph (4) would allow Bekaert the flexibility of modifying its
processes (for example, changes in equipment or change in operating
conditions) to improve its treatment processes. However, Bekaert must
prove the effectiveness of the modified process and request approval
from the EPA. Bekaert must manage wastes generated during the new
process demonstration as hazardous waste until it has obtained written
approval and paragraph (3), is satisfied.
(5) Data Submittals
To provide appropriate documentation that Bekaert's facility is
managing the dewatered WWTP sludge, Bekaert must compile, summarize,
and keep delisting records on-site for a minimum of five years. It
should keep all analytical data obtained through paragraph (3)
including quality control information for five years. Paragraph (5)
requires that Bekaert furnish these data upon request for inspection by
any employee or representative of the EPA or the State of Tennessee.
If the proposed exclusion is made final, then it will apply only to
1250 cubic yards per calendar year of dewatered WWTP sludge generated
at the Bekaert facility after successful verification testing.
The EPA would require Bekaert to file a new delisting petition
under any of the following circumstances:
(a) If Bekaert significantly alters the manufacturing process
treatment system except as described in paragraph (4).
(b) If Bekaert uses any new manufacturing or production
process(es), or significantly change from the current process(es)
described in its petition; or
(c) If Bekaert makes any changes that could affect the composition
or type of waste generated.
Bekaert must manage waste volumes greater than 1250 cubic yards per
calendar year of dewatered WWTP sludge as hazardous waste until the EPA
grants a new exclusion. When this exclusion becomes final, the
management by Bekaert of the dewatered WWTP sludge covered by this
petition would be relieved from Subtitle C jurisdiction. Bekaert must
either (a) treat, store, or dispose of the waste in a State permitted
on-site facility, or (b) Bekaert must ensure that it delivers the waste
to an off-site storage, treatment, or disposal facility that has a
State permit, license, or register to manage municipal or industrial
solid waste consistent with the requirements of RCRA.
(6) Reopener
The purpose of paragraph (6) is to require Bekaert to disclose new
or different information related to a condition at the facility or
disposal of the waste if it is pertinent to the delisting. Bekaert must
also use this procedure if the waste sample in the annual testing fails
to meet the levels found in paragraph (1). This provision will allow
the EPA to reevaluate the exclusion if a source provides new or
additional information to the EPA. The EPA will evaluate the
information on which it based the decision to see if it is still
correct, or if circumstances have changed so that the information is no
longer correct or would cause the EPA to deny the petition if
presented.
This provision expressly requires Bekaert to report differing site
conditions or assumptions used in the petition in addition to failure
to meet the annual testing conditions within ten (10) days of
discovery. If the EPA discovers such information itself or from a third
party, it can act on it as appropriate. The language being proposed is
similar to those provisions found in RCRA regulations governing no-
migration petitions at Sec. 268.6.
The EPA believes that it has the authority under RCRA and the
Administrative Procedures Act (APA), 5 U.S.C. 551 (1978) et seq., to
reopen a delisting decision. The EPA may reopen a delisting decision
when it receives new information that calls into question the
assumptions underlying the delisting.
The EPA believes a clear statement of its authority in delistings
is merited in light of the EPA experience. See Reynolds Metals Company
at 62 FR 37694 (July 14, 1997) and 62 FR 63458 (December 1, 1997) where
the delisted waste leached at greater concentrations in the environment
than the concentrations predicted when conducting the TCLP, thus
leading the EPA to repeal the delisting. If an immediate threat to
human health and the environment presents itself, the EPA will continue
to address these situations case by case. Where necessary, the EPA will
make a good cause finding to justify
[[Page 7894]]
emergency rulemaking. See APA section 553(b).
(7) Notification Requirements
In order to adequately track wastes that have been delisted, the
EPA is requiring that Bekaert provide a one-time notification to any
State regulatory agency through which or to which the delisted waste is
being carried. Bekaert must provide this notification within sixty (60)
days of commencing this activity.
B. What Happens if Bekaert Violates the Terms and Conditions?
If Bekaert violates the terms and conditions established in the
exclusion, the EPA will initiate procedures to withdraw the exclusion.
Where there is an immediate threat to human health and the environment,
the EPA will evaluate the need for enforcement activities on a case-by-
case basis. The EPA expects Bekaert to conduct the appropriate waste
analysis and comply with the criteria explained above in paragraph (1)
of the exclusion.
V. Public Comments
A. How May I as an Interested Party Submit Comments?
The EPA is requesting public comments on this proposed decision.
Please send three copies of your comments. Send two copies to the
Chief, North Section, RCRA Enforcement and Compliance Branch, U. S.
Environmental Protection Agency Region 4, Atlanta Federal Center, 61
Forsyth Street SW., Atlanta, Georgia 30303. Send a third copy to Mr.
Mike Apple, Director, Division of Solid Waste Management, Tennessee
Department of Environment and Conservation, 5th Floor, L&C Tower, 401
Church Street, Nashville, Tennessee 37243-1535. You should identify
your comments at the top with this regulatory docket number: R$DLP-
0301-Bekaert.
You should submit requests for a hearing to Jewell Grubbs, Chief,
RCRA Enforcement and Compliance Branch, Waste Division, U. S.
Environmental Protection Agency Region 4, Atlanta Federal Center, 61
Forsyth Street SW., Atlanta, Georgia 30303.
B. How May I Review the Docket or Obtain Copies of the Proposed
Exclusion?
You may review the RCRA regulatory docket for this proposed rule at
the U.S. Environmental Protection Agency Region 4, Atlanta Federal
Center, 61 Forsyth Street SW., Atlanta, Georgia 30303.
It is available for viewing in the EPA Freedom of Information Act
Review Room from 9 a.m. to 4 p.m., Monday through Friday, excluding
Federal holidays. Call (404) 562-8614 for appointments. The public may
copy material from any regulatory docket at no cost for the first 100
pages, and at fifteen cents per page for additional copies.
VI. Regulatory Impact
Under Executive Order 12866, the EPA must conduct an ``assessment
of the potential costs and benefits'' for all ``significant''
regulatory actions.
The proposal to grant an exclusion is not significant, since its
effect, if promulgated, would be to reduce the overall costs and
economic impact of the EPA's hazardous waste management regulations.
This reduction would be achieved by excluding waste generated at a
specific facility from the EPA's lists of hazardous wastes, thus
enabling a facility to manage its waste as nonhazardous.
Because there is no additional impact from this proposed rule, this
proposal would not be a significant regulation, and no cost/benefit
assessment is required. The Office of Management and Budget (OMB) has
also exempted this rule from the requirement for OMB review under
section (6) of Executive Order 12866.
VII. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, whenever an
agency is required to publish a general notice of rulemaking for any
proposed or final rule, it must prepare and make available for public
comment a regulatory flexibility analysis which describes the impact of
the rule on small entities (that is, small businesses, small
organizations, and small governmental jurisdictions). No regulatory
flexibility analysis is required, however, if the Administrator or
delegated representative certifies that the rule will not have any
impact on small entities.
This rule, if promulgated, will not have an adverse economic impact
on small entities since its effect would be to reduce the overall costs
of the EPA's hazardous waste regulations and would be limited to one
facility. Accordingly, the EPA hereby certifies that this proposed
regulation, if promulgated, will not have a significant economic impact
on a substantial number of small entities. This regulation, therefore,
does not require a regulatory flexibility analysis.
VIII. Paperwork Reduction Act
Information collection and recordkeeping requirements associated
with this proposed rule have been approved by the Office of Management
and Budget (OMB) under the provisions of the Paperwork Reduction Act of
1980 (Pub. L. 96-511, 44 U.S.C. 3501 et seq.) and have been assigned
OMB Control Number 2050 0053.
IX. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA), Public Law 104-4, which was signed into law on March 22, 1995,
the EPA generally must prepare a written statement for rules with
Federal mandates that may result in estimated costs to State, local,
and tribal governments in the aggregate, or to the private sector, of
$100 million or more in any one year.
When such a statement is required for the EPA rules, under section
205 of the UMRA the EPA must identify and consider alternatives,
including the least costly, most cost-effective, or least burdensome
alternative that achieves the objectives of the rule. The EPA must
select that alternative, unless the Administrator explains in the final
rule why it was not selected or it is inconsistent with law.
Before the EPA establishes regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must develop under section 203 of the UMRA a small
government agency plan. The plan must provide for notifying potentially
affected small governments, giving them meaningful and timely input in
the development of the EPA's regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising them on compliance with the regulatory requirements.
The UMRA generally defines a Federal mandate for regulatory
purposes as one that imposes an enforceable duty upon state, local, or
tribal governments or the private sector.
The EPA finds that this delisting decision is deregulatory in
nature and does not impose any enforceable duty on any State, local, or
tribal governments or the private sector. In addition, the proposed
delisting decision does not establish any regulatory requirements for
small governments and so does not require a small government agency
plan under UMRA section 203.
X. Executive Order 13045
The Executive Order 13045 is entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997). This order applies to any rule that the EPA determines (1) is
economically
[[Page 7895]]
significant as defined under Executive Order 12866, and (2) the
environmental health or safety risk addressed by the rule has a
disproportionate effect on children. If the regulatory action meets
both criteria, the EPA 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 EPA. This proposed rule is not
subject to Executive Order 13045 because this is not an economically
significant regulatory action as defined by Executive Order 12866.
XI. Executive Order 13084
Because this action does not involve any requirements that affect
Indian Tribes, the requirements of section 3(b) of Executive Order
13084 do not apply.
Under Executive Order 13084, the EPA may not issue a regulation
that is not required by statute, that significantly affects or uniquely
affects the communities of Indian tribal governments, and that imposes
substantial direct compliance costs on those communities, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by the tribal governments.
If the mandate is unfunded, the EPA must provide to the Office of
Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of the EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation.
In addition, Executive Order 13084 requires the EPA to develop an
effective process permitting elected and other representatives of
Indian tribal governments to have ``meaningful and timely input'' in
the development of regulatory policies on matters that significantly or
uniquely affect their communities of Indian tribal governments. This
action does not involve or impose any requirements that affect Indian
Tribes. Accordingly, the requirements of section 3(b) of Executive
Order 13084 do not apply to this rule.
XII. National Technology Transfer and Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act, the EPA is directed 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, business practices,
etc.) developed or adopted by voluntary consensus standard bodies.
Where available and potentially applicable voluntary consensus
standards are not used by the EPA, the Act requires that the EPA
provide Congress, through the OMB, an explanation of the reasons for
not using such standards.
This rule does not establish any new technical standards and thus,
the EPA has no need to consider the use of voluntary consensus
standards in developing this final rule.
XIII. Executive Order 13132 Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999) requires the 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.''
Under section 6 of Executive Order 13132, the EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or the EPA
consults with State and local officials early in the process of
developing the proposed regulation. The EPA also may not issue a
regulation that has federalism implications and that preempts State law
unless the EPA consults with State and local officials early in the
process of developing the proposed regulation.
This action does not have federalism implication. It will not have
a substantial direct effect on States, on the relationship between the
national government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132, because it affects only one facility.
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: February 10, 2004.
Winston A. Smith,
Director, Waste Management Division, Region 4.
For the reasons set out in the preamble, 40 CFR part 261 is
proposed to be amended as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
2. In appendix IX to part 261, in table 1, revise the following
waste stream, and in tables 2 and 3, add the following waste stream in
alphabetical order by facility to read as follows:
Appendix IX to Part 261--Waste Excluded Under Sec. Sec. 260.20 and
260.22
--------------------------------------------------------------------------------------------------------------------------------------------------------
Facility Address Waste description
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* * * * * * *
Bekaert Corp.......................... Dyersburg, TN......................... Dewatered wastewater treatment plant (WWTP) sludge (EPA Hazardous Waste
Nos. F006) generated at a maximum rate of 1250 cubic yards per calendar
year after [publication date of the final rule] and disposed in a
Subtitle D landfill.
For the exclusion to be valid, Bekaert must implement a verification
testing program that meets the following paragraphs:
[[Page 7896]]
(1) Delisting Levels: All leachable concentrations for those
constituents must not exceed the maximum allowable concentrations in mg/
l specified in this paragraph. Bekaert must use the leaching method
specified at 40 CFR 261.24 to measure constituents in the waste
leachate. (A) Inorganic Constituents (from Table 1) TCLP (mg/l):
Cadmium--0.672; Chromium--5.0; Nickel--127; Zinc--1260.0. (B) Organic
Constituents (from Table 1) TCLP (mg/l): Methyl ethyl ketone--200.0.
(2) Waste Holding and Handling: (A) Bekaert must accumulate the
hazardous waste dewatered WWTP sludge in accordance with the applicable
regulations of 40 CFR 262.34 and continue to dispose of the dewatered
WWTP sludge as hazardous waste. (B) Once the first quarterly sampling
and analyses event described in paragraph (3) is completed and valid
analyses demonstrate that no constituent is present in the sample at a
level which exceeds the delisting levels set in paragraph (1), Bekaert
can manage and dispose of the dewatered WWTP sludge as nonhazardous
according to all applicable solid waste regulations. (C) If constituent
levels in any sample taken by Bekaert exceed any of the delisting
levels set in paragraph (1), Bekaert must do the following: (i) notify
EPA in accordance with paragraph (6) and (ii) manage and dispose the
dewatered WWTP sludge as hazardous waste generated under Subtitle C of
RCRA. (D) Quarterly Verification Testing Requirements: Upon this
exclusion becoming final, Bekaert may begin the quarterly testing
requirements of paragraph (3) on its dewatered WWTP sludge.
(3) Quarterly Testing Requirements: Upon this exclusion becoming final,
Bekaert may perform quarterly analytical testing by sampling and
analyzing the dewatered WWTP sludge as follows: (A)(i) Collect four
representative composite samples of the hazardous waste dewatered WWTP
sludge at quarterly (ninety (90) day) intervals after EPA grants the
final exclusion. The first composite sample may be taken at any time
after EPA grants the final approval. (ii) Analyze the samples for all
constituents listed in paragraph (1). Any roll-offs from which the
composite sample is taken exceeding the delisting levels listed in
paragraph (1) must be disposed as hazardous waste in a Subtitle C
landfill. (iii) Within forty-five (45) days after taking its first
quarterly sample, Bekaert will report its first quarterly analytical
test data to EPA. If levels of constituents measured in the sample of
the dewatered WWTP sludge do not exceed the levels set forth in
paragraph (1) of this exclusion, Bekaert can manage and dispose the
nonhazardous dewatered WWTP sludge according to all applicable solid
waste regulations.
(4) Annual Testing: (A) If Bekaert completes the quarterly testing
specified in paragraph (3) above and no sample contains a constituent
with a level which exceeds the limits set forth in paragraph (1),
Bekaert may begin annual testing as follows: Bekaert must test one
representative composite sample of the dewatered WWTP sludge for all
constituents listed in paragraph (1) at least once per calendar year.
(B) The sample for the annual testing shall be a representative
composite sample (according to SW-846 methodologies) for all
constituents listed in paragraph (1). (C) The sample for the annual
testing taken for the second and subsequent annual testing events shall
be taken within the same calendar month as the first annual sample
taken.
(5) Changes in Operating Conditions: If Bekaert significantly changes
the process described in its petition or starts any processes that
generate(s) the waste that may or could affect the composition or type
of waste generated as established under paragraph (1) (by illustration,
but not limitation, changes in equipment or operating conditions of the
treatment process), it must notify the EPA in writing; it may no longer
handle the wastes generated from the new process as nonhazardous until
the wastes meet the delisting levels set in paragraph (1) and it has
received written approval to do so from the EPA.
(6) Data Submittals: Bekaert must submit the information described
below. If Bekaert fails to submit the required data within the
specified time or maintain the required records on-site for the
specified time, the EPA, at its discretion, will consider this
sufficient basis to reopen the exclusion as described in paragraph (6).
Bekaert must: (A) Submit the data obtained through paragraph (3) to the
Chief, North Section, RCRA Enforcement and Compliance Branch, Waste
Division, U.S. Environmental Protection Agency Region 4, 61 Forsyth
Street SW., Atlanta, Georgia, 30303, within the time specified. (B)
Compile records of analytical data from paragraph (3), summarized, and
maintained on-site for a minimum of five years. (C) Furnish these
records and data when either the EPA or the State of Tennessee request
them for inspection. (D) Send along with all data a signed copy of the
following certification statement, to attest to the truth and accuracy
of the data submitted: ``Under civil and criminal penalty of law for
the making or submission of false or fraudulent statements or
representations (pursuant to the applicable provisions of the Federal
Code, which include, but may not be limited to, 18 U.S.C. 1001 and 42
U.S.C. 6928), I certify that the information contained in or
accompanying this document is true, accurate and complete. As to the
(those) identified section(s) of this document for which I cannot
personally verify its (their) truth and accuracy, I certify as the
company official having supervisory responsibility for the persons who,
acting under my direct instructions, made the verification that this
information is true, accurate and complete. If any of this information
is determined by the EPA in its sole discretion to be false, inaccurate
or incomplete, and upon conveyance of this fact to the company, I
recognize and agree that this exclusion of waste will be void as if it
never had effect or to the extent directed by the EPA and that the
company will be liable for any actions taken in contravention of the
company's RCRA and CERCLA obligations premised upon the company's
reliance on the void exclusion.''
[[Page 7897]]
(7) Reopener: (A) If, anytime after disposal of the delisted waste
Bekaert possesses or is otherwise made aware of any environmental data
(including but not limited to leachate data or ground water monitoring
data) or any other data relevant to the delisted waste indicating that
any constituent identified for the delisting verification testing is at
level higher than the delisting level allowed by the Regional
Administrator or his delegate in granting the petition, then the
facility must report the data, in writing, to the Regional
Administrator or his delegate within ten (10) days of first possessing
or being made aware of that data. (B) If either the quarterly or annual
testing of the waste does not meet the delisting requirements in
paragraph (1), Bekaert must report the data, in writing, to the
Regional Administrator or his delegate within ten (10) days of first
possessing or being made aware of that data. (C) If Bekaert fails to
submit the information described in paragraphs (5), (6)(A) or (6)(B) or
if any other information is received from any source, the Regional
Administrator or his delegate will make a preliminary determination as
to whether the reported information requires the EPA 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. (D) If the Regional
Administrator or his delegate determines that the reported information
requires action the EPA, the Regional Administrator or his delegate
will notify the facility in writing of the actions the Regional
Administrator or his delegate believes are necessary to protect human
health and the environment. The notification shall include a statement
of the proposed action and a statement providing the facility with an
opportunity to present information as to why the proposed EPA action is
not necessary. The facility shall have ten (10) days from the date of
the Regional Administrator or his delegate's notice to present such
information. (E) Following the receipt of information from the facility
described in paragraph (6)(D) or (if no information is presented under
paragraph (6)(D)) the initial receipt of information described in
paragraphs (5), (6)(A) or (6)(B), the Regional Administrator or his
delegate will issue a final written determination describing the EPA
actions that are necessary to protect human health or the environment.
Any required action described in the Regional Administrator or his
delegate's determination shall become effective immediately, unless the
Regional Administrator or his delegate provides otherwise.
(8) Notification Requirements: Bekaert must do the following before
transporting the delisted waste: (A) Provide a one-time written
notification to any State Regulatory Agency to which or through which
it will transport the delisted waste described above for disposal,
sixty (60) days before beginning such activities. (B) Update the one-
time written notification if Bekaert ships the delisted waste into a
different disposal facility. (C) Failure to provide this notification
will result in a violation of the delisting variance and a possible
revocation of the decision.
* * * * * * *
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[FR Doc. 04-3600 Filed 2-19-04; 8:45 am]
BILLING CODE 6560-50-P