[Federal Register Volume 71, Number 146 (Monday, July 31, 2006)]
[Rules and Regulations]
[Pages 43067-43071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6587]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FRL-8204-4]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Final Exclusion
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to codify a longstanding
generator-specific delisting determination for brine purification muds
(K071) generated by Olin Corporation (Olin) at its facility in
Charleston, Tennessee. This rule will amend the Code of Federal
Regulations to reflect the delisting, which was granted by EPA in
December 1981 and by the Tennessee Department of Environment and
Conservation in June 1983 after full notice and comment. The rule will
not impose any new requirements on Olin or any other member of the
regulated community.
DATES: This rule is effective on September 29, 2006 without further
notice unless we receive adverse comment by August 30, 2006. If we
receive adverse comments, we will publish a timely withdrawal in the
Federal Register informing the public that this rule will not take
effect.
ADDRESSES: Submit comments, identified by docket number EPA-R04-RCRA-
2006-0478, by one of the following methods:
Federal eRulemaking Portal: www.regulations.gov. Follow
the on-line instructions.
E-mail: [email protected].
Mail or deliver: Kristin Lippert, North 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.
Instructions: All comments will be included in the public docket
without change and may be made available online at www.regulations.gov,
including any personal information provided, unless the comment
includes Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Information that you
consider CBI or otherwise protected should be clearly identified as
such and should not be submitted through www.regulations.gov or e-mail.
www.regulations.gov is an ``anonymous access'' system, and EPA will not
know your identity or contact information unless you provide it in the
body of your comment. If you send e-mail directly to EPA, your e-mail
address will be automatically captured and included as part of the
public comment. If EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, EPA may not be
able to consider your comment.
Docket: The index to the docket for this action is available
electronically at
[[Page 43068]]
www.regulations.gov and in hard copy at the EPA Library, U.S.
Environmental Protection Agency, Region 4, Sam Nunn Atlanta Federal
Center, 61 Forsyth Street SW., Atlanta, Georgia 30303. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available in either location
(e.g., CBI).
FOR FURTHER INFORMATION CONTACT: For general and technical information
about this Direct Final Rule, contact Kristin Lippert, North
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) 562-8605.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Legal Background
II. Olin's Petition to Delist its Waste
III. Evaluation of Olin's Petition
IV. History of this Rulemaking
V. Final Action and Effective Date
VI. Regulatory Impact
VII. Regulatory Flexibility Act
VIII. Executive Order 12875
IX. Executive Order 12898
X. Executive Order 13211
XI. Paperwork Reduction Act
XII. Unfunded Mandates Reform Act
XIII. Executive Order 13045
XIV. Executive Order 13175
XV. National Technology Transfer and Advancement Act
XVI. Executive Order 13132 Federalism
XVII. Submission to Congress and General Accounting Office
I. Legal Background
On January 16, 1981, as part of its final and interim final
regulations implementing section 3001 of the Resource Conservation and
Recovery Act (RCRA), EPA published an amended list of hazardous wastes
from non-specific and specific sources. This list has been amended
several times and is published in Title 40 Code of Federal Regulations
(40 CFR) 261.31 and 261.32. These wastes are listed as hazardous
because: (1) They exhibit one or more of the characteristics of
hazardous waste identified in subpart C of part 261 (i.e.,
ignitability, corrosivity, reactivity, and toxicity); or (2) they meet
the criteria for listing contained in 40 CFR 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
that is described in these regulations generally is hazardous, a
specific waste from an individual facility meeting the listing
description may not be. For this reason, 40 CFR 260.20 and 260.22
provide an exclusion procedure, called delisting, which allows persons
to demonstrate that a specific waste generated at a particular facility
should not be regulated as a hazardous waste.
II. Olin's Petition to Delist its Waste
On July 13, 1981, Olin petitioned EPA to amend 40 CFR part 261 to
exclude sodium chloride purification muds generated at Olin's facility
in Charleston, Tennessee. The muds meet the listing description for EPA
Hazardous Waste No. K071--brine purification muds from the mercury cell
process in chlorine production, where separately prepurified brine is
not used.
Olin's petition included a description of its production and
treatment processes. Olin's Charleston facility manufactures chlorine
using a mercury cell chlor-alkali process. The chlor-alkali production
process at Charleston involves the preparation of a strong brine from
rock salt, which then circulates through mercury where part of the
dissolved sodium chloride is separated by electrolysis into chlorine
and sodium. The chlorine is collected and processed into liquid
chlorine and the sodium amalgamates with the mercury of the cell and is
separated and decomposed to form sodium hydroxide. The weak brine
leaves the cells, is dechlorinated, resaturated, and purified. The
purification (settling and filtration) of the resaturated brine
produces brine muds which contain low levels of mercury carried over
from the cells. The muds are dewatered using gravity. Liquid brine and
dissolved mercury drain out and are returned to the brine system.
Olin's petition also included a description of total constituent
and EP toxicity analyses of the muds for mercury, the constituent of
concern for K071, and provided a plan for continuous testing of the
muds prior to disposal.
III. Evaluation of Olin's Petition
Based on the information submitted by Olin, EPA granted a
conditional temporary exclusion for Olin's sodium chloride purification
muds on December 16, 1981 (46 FR 61272, December 16, 1981). The
exclusion is conditioned on Olin's testing of samples from each batch
of mud for mercury prior to disposal. Batches with a mercury
concentration of 0.05 parts per million (ppm) or less are considered
nonhazardous and are disposed of in Olin's on-site solid waste
landfill. Batches that exceed 0.05 ppm of mercury are considered
hazardous and are disposed of accordingly. EPA requested public
comments on the delisting of Olin's brine purification muds. No adverse
comments were received by the Agency.
At EPA's direction on September 28, 1981, Olin also submitted a
delisting petition to the Tennessee Division of Solid Waste Management
because, at that time, Tennessee had Phase 1 Interim Authorization. On
February 17, 1982, Tennessee published notice of its tentative decision
to grant Olin's delisting petition and requested public comments. No
public comments were received by Tennessee. On June 28, 1983, Tennessee
granted final approval of Olin's petition. Under the terms of the final
approval, Olin must analyze samples from every batch of mud before
disposal and submit the results to Tennessee on a quarterly basis. If a
batch exceeds a mercury concentration of 0.05 ppm, Olin must handle the
batch as a hazardous waste.
In 1984, Congress passed the Hazardous and Solid Waste Amendments
(``HSWA'') to RCRA. HSWA included additional criteria for evaluating
proposed exclusions of certain listed waste. In anticipation of HSWA,
EPA and Tennessee asked Olin to supply additional information that
would allow evaluation of Olin's delisting under HSWA's proposed
criteria. Olin complied, supplying detailed information supporting the
delisting determination previously made by the agencies. Subsequently,
both agencies confirmed that final exclusions, such as Olin's
delisting, which were granted before November 8, 1984 were not affected
by HSWA.
IV. History of This Rulemaking
In 2004, Olin contacted EPA seeking confirmation that use of
potassium chloride as a raw material in the mercury cell process would
not affect application of Olin's delisting to brine purification muds
generated in that process, provided the muds meet the criteria of the
delisting. Olin determined that use of potassium chloride as a raw
material in the production process will not alter the composition or
characteristics of the resulting brine purification muds with respect
to mercury, the constituent of concern, nor will use of potassium
chloride introduce any other hazardous constituents into the muds. EPA
agreed with Olin's determination and concluded that Olin did not need a
modification to its current delisting in order to use the delisting to
manage muds generated in the potassium chloride process.
[[Page 43069]]
In the course of EPA's review of Olin's determination regarding use
of potassium chloride, the Agency noted that Olin's delisting is not
listed in the Code of Federal Regulations. EPA is issuing this direct
final rule to correct this oversight.
V. Final Action and Effective Date
By this rule, EPA is taking direct final action to incorporate
Olin's longstanding delisting into the Code of Federal Regulations. EPA
is publishing this as a direct final rule because the Agency views this
as a non-controversial amendment to the Code of Federal Regulations and
anticipates no adverse comments. Interested parties had two prior
opportunities to comment on Olin's delisting petition, first at the
federal level and later at the state level, and no adverse comments
were submitted. EPA sees no reason to provide a third comment period.
This rule will be effective upon publication in the Federal
Register. Section 3010(b) of RCRA allows rules to become effective
immediately when the regulated community does not need time to come
into compliance. That is the case here because this rule will codify
Olin's longstanding delisting for brine purification muds by amending
the Code of Federal Regulations to reflect the delisting. The rule does
not impose any new requirements on Olin or any other member of the
regulated community. This reason also provides a basis for making this
rule effective immediately, upon publication, under the Administrative
Procedure Act pursuant to 5 U.S.C. 553(d).
VI. Regulatory Impact
Because EPA is issuing today's rule under the Federal RCRA
delisting program, only states subject to federal RCRA delisting
provisions are affected. This exclusion may not be effective in states
that have received EPA's authorization to make their own delisting
decisions.
Under section 3009 of RCRA, EPA allows states to impose their own
non-RCRA regulatory requirements that are more stringent than EPA's
requirements. These more stringent requirements may include a provision
that prohibits a federally issued exclusion from taking effect in the
state. EPA urges petitioners to contact the state regulatory authority
to establish the status of their wastes under state law.
EPA has also authorized some states to administer a delisting
program in place of the federal program, that is, to make state
delisting decisions. Therefore, this exclusion does not apply in those
authorized states. If Olin manages brine purification muds in any state
with delisting authorization, Olin must obtain delisting authorization
from the state before Olin can manage the brine purification muds as
nonhazardous in that state.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA
must conduct an ``assessment of the potential costs and benefits'' for
all ``significant'' regulatory actions. Today's rule is not significant
because its effect is to reduce the overall costs and economic impact
of EPA's hazardous waste management regulations. This reduction is
achieved by excluding waste generated at a specific facility from EPA's
lists of hazardous wastes, thus enabling a facility to manage its waste
as nonhazardous. Because there is no additional impact from today's
rule, the rule is not 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 a
significant economic impact on a substantial number of small entities.
Today's rule will not have any impact on small entities since its
effect is to reduce the overall costs of EPA's hazardous waste
regulations on one facility. Accordingly, EPA hereby certifies that
this rule will not have a significant economic impact on a substantial
number of small entities. This rule, therefore, does not require a
regulatory flexibility analysis.
VIII. Executive Order 12875
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a state, local,
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If the mandate is unfunded, EPA must provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected state, local, and tribal
governments, the nature of their concerns, copies of written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of state, local, and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule does not create a mandate on state, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of Executive
Order 12875 do not apply to this rule.
IX. Executive Order 12898
Executive Order 12898, ``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Population'' (February
11, 1994), is designed to address the environmental and human health
conditions of minority and low-income populations. EPA is committed to
addressing environmental justice concerns and has assumed a leadership
role in environmental justice initiatives to enhance environmental
quality for all citizens of the United States. The Agency's goals are
to ensure that no segment of the population, regardless of race, color,
national origin, income, or net worth bears disproportionately high and
adverse human health and environmental impacts as a result of EPA's
policies, programs, and activities. In response to Executive Order
12898, and to concerns voiced by many groups outside the Agency, EPA's
Office of Solid Waste and Emergency Response (OSWER) formed an
Environmental Justice Task Force to analyze the array of environmental
justice issues specific to waste programs and to develop an overall
strategy to identify and address these issues (OSWER Directive No.
9200.3-17). Today's final rule applies to a single waste at a single
facility. We have no data indicating that today's final rule would
result in disproportionately negative impacts on minority or low income
communities.
X. Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That Affect
Energy Supply, Distribution, or Use'' (May 18, 2001), addresses the
need for regulatory actions to more fully consider the potential energy
impacts of the proposed rule and resulting actions.
[[Page 43070]]
Under the Order, agencies are required to prepare a Statement of Energy
Effects when a regulatory action may have significant adverse effects
on energy supply, distribution, or use, including impacts on price and
foreign supplies. Additionally, the requirements obligate agencies to
consider reasonable alternatives to regulatory actions with adverse
effects and the impacts the alternatives might have upon energy supply,
distribution, or use. Today's final rule applies to a single waste at a
single facility and is not likely to have any significant adverse
impact on factors affecting energy supply. EPA believes that 66 FR
28355 Executive Order 13211 is not relevant to this action.
XI. Paperwork Reduction Act
This final 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.). Because there are no paperwork requirements as part of
this final rule, EPA is not required to prepare an Information
Collection Request (ICR) in support of today's action.
XII. 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,
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 EPA rules, under section 205
of the UMRA EPA must identify and consider alternatives, including the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. 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 EPA establishes regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, EPA 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 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.
EPA finds that today's rule is deregulatory in nature and does not
impose any enforceable duty on any State, local, or tribal governments
or the private sector. Therefore, no statement is required under
section 205 of the UMRA. In addition, this rule does not establish any
regulatory requirements for small governments and so does not require a
small government agency plan under UMRA section 203.
XIII. Executive Order 13045
Executive Order 13045 (62 FR 19885, April 23, 1997), entitled
``Protection of Children from Environmental Health Risks and Safety
Risks,'' applies to any rule that EPA determines: (1) Is economically
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, 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 EPA. Today's rule is not subject to
Executive Order 13045 because the rule is not economically significant
as defined under Executive Order 12866.
XIV. Executive Order 13175
Under Executive Order 13175 (65 FR 67249, November 6, 2000), EPA
may not issue a regulation that has tribal implications, that imposes
substantial direct compliance costs on Indian tribal governments, and
that is not required by statute, unless funds necessary to pay the
direct costs incurred by the Indian tribal government or the tribe in
complying with the regulation are provided by the Federal government or
EPA takes certain steps prior to the formal promulgation of the
regulation. Those steps include: (1) Consulting with tribal officials
early in the process of developing the proposed regulation; (2)
providing to the Director of OMB, in a separately identified section of
the regulation's preamble, a description of the extent of EPA's prior
consultation with tribal officials, a summary of the nature of their
concerns and EPA's position supporting the need to issue the
regulation, and a statement of the extent to which the concerns of
tribal officials have been met; and (3) making available to the
Director of OMB any written communications submitted to EPA by tribal
officials.
Today's rule does not have tribal implications because it will not
have a substantial direct effect on one or more Indian tribes, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Accordingly, the requirements of Executive Order 13175 do not apply to
this rule.
XV. National Technology Transfer and Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act of 1995, 15 U.S.C. 272 note, 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)
developed or adopted by voluntary consensus standard bodies. Where
available and potentially applicable voluntary consensus standards are
not used by EPA, the Act requires that EPA provide Congress, through
OMB, with an explanation of the reasons for not using such standards.
Today's rule does not establish any new technical standards and,
therefore, EPA is not required to consider the use of voluntary
consensus standards in developing this rule.
XVI. Executive Order 13132 Federalism
Executive Order 13132 (64 FR 43255, August 10, 1999), entitled
``Federalism,'' requires EPA to develop an accountable process to
ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have federalism
implications.'' ``Policies that have federalism implications'' are
defined in the Executive Order to include regulations that have
``substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.''
Under section 6 of Executive Order 13132, 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 EPA
consults with
[[Page 43071]]
State and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that preempts State law unless EPA consults
with State and local officials early in the process of developing the
proposed regulation.
Today's rule does not have federalism implications. It does 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 the rule only affects one
facility.
XVII. Submission to Congress and Government Accountability Office
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of Congress and to the Comptroller General of the United
States.
Under section 804 of the Congressional Review Act, rules of
particular applicability are exempted from the requirements of section
801. See 5 U.S.C. 804(3). EPA is not required to submit a rule report
regarding today's action under section 801 because this is a rule of
particular applicability. This rule is effective on September 29, 2006.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, and Reporting
and recordkeeping requirements.
Authority: Section 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: July 18, 2006.
Beverly H. Banister,
Acting Director, Waste Management Division, Region 4.
0
For the reasons set out in the preamble, 40 CFR part 261 is amended as
follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
0
1. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
0
2. In Table 2 of Appendix IX of Part 261, the following waste is added
in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Wastes Excluded Under Sec. Sec. 260.20 and
260.22
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Table 2.--Wastes Excluded From Specific Sources
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Facility Address Waste description
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Olin Corporation........................ Charleston, TN............. Sodium chloride purification muds and
potassium chloride purification muds
(both classified as EPA Hazardous Waste
No. K071) that have been batch tested
using EPA's Toxicity Characteristic
Leaching Procedure and have been found
to contain less than 0.05 ppm mercury.
Purification muds that have been found
to contain less than 0.05 ppm mercury
will be disposed in Olin's on-site non-
hazardous waste landfill or another
Subtitle D landfill. Purification muds
that exceed this level will be
considered a hazardous waste.
* * * * * * *
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[FR Doc. 06-6587 Filed 7-28-06; 8:45 am]
BILLING CODE 6560-50-P