[Federal Register Volume 75, Number 194 (Thursday, October 7, 2010)]
[Proposed Rules]
[Pages 62040-62048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25319]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R03-RCRA-2010-0132; FRL-9211-7]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Proposed Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA, also the Agency or
we in this preamble) is proposing to grant a petition submitted by
Babcock & Wilcox Nuclear Operations Group, Inc., the current owner, and
to BWX Technologies, Inc., as predecessor in interest to the current
owner, identified collectively hereafter in this preamble as ``B&W
NOG,'' to exclude (or delist) on a one-time basis from the lists of
hazardous waste, a certain solid waste generated at its Mt. Athos
facility near Lynchburg, Virginia.
The Agency has tentatively decided to grant the petition based on
an evaluation of specific information provided by the petitioner. This
tentative decision, if finalized, would conditionally exclude the
petitioned waste from the requirements of the hazardous waste
regulations under the Resource Conservation and Recovery Act (RCRA).
The Agency is requesting comments on this proposed decision.
DATES: To make sure we consider your comments on this proposed
exclusion, they must be received by November 22, 2010. Comments
received after the close of the comment period will be designated as
late. These late comments may not be considered in formulating a final
decision.
Any person may request a hearing on this tentative decision to
grant the petition by filing a request by October 22, 2010. The request
must contain the information prescribed in 40 CFR 260.20(d).
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
RCRA-2010-0132 by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov:
Follow the on-line instructions for submitting comments.
E-mail: [email protected].
Mail: David M. Friedman, Environmental Protection Agency
Region III, Land and Chemicals Management Division, Office of Technical
and Administrative Support, Mail Code: 3LC10, 1650 Arch Street,
Philadelphia, PA 19103-2029.
Hand Delivery or Courier: Deliver your comments to: David
M. Friedman, Environmental Protection Agency Region III, Land and
Chemicals Management Division, Office of Technical and Administrative
Support, Mail Code: 3LC10, 1650 Arch Street, Philadelphia, PA 19103-
2029. Comments delivered in this manner are only accepted during normal
hours of operation.
Instructions: Direct your comments to Docket ID No. EPA-R03-RCRA-
2010-0132. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www/regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and that is made available on the Internet.
If you submit an electronic comment, EPA recommends that you include
your name and other contact information in the body of your comment and
with any disk or CD-ROM you submit. 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. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at http://www/epa/gov/
epahome/dockets.htm.
Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Environmental
Protection Agency, Land and Chemicals Division, Office of Technical and
Administrative Support, Mail Code: 3LC10, 1650 Arch Street,
Philadelphia, PA 19103-2029. The hard copy RCRA regulatory docket for
this proposed rule, EPA-R03-RCRA-2010-0132, is available for viewing
from 8 a.m. to 3 p.m., Monday through Friday, excluding Federal
holidays. You may copy material from any regulatory docket at a cost of
$0.15 per page for additional copies. EPA requests that you contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. You should make an appointment with the
office at least 24 hours in advance.
FOR FURTHER INFORMATION CONTACT: For further technical information
concerning this document or for appointments to view the docket or the
B&W NOG facility petition, contact David M. Friedman, Environmental
Protection Agency Region III, Land and Chemicals Division, Office of
Technical and Administrative Support, Mail Code: 3LC10, 1650 Arch
Street, Philadelphia, PA 19103-2029, by calling 215-814-3395 or by e-
mail at [email protected].
[[Page 62041]]
SUPPLEMENTARY INFORMATION: The information in this preamble is
organized as follows:
I. Background
A. What is a listed hazardous waste?
B. What laws and regulations give EPA the authority to delist
waste?
C. What is a delisting petition?
II. What did B&W NOG request in its petition?
III. Waste-Specific Information
A. How was the waste generated?
B. What information did B&W NOG submit to support its petition?
IV. EPA's Evaluation of the Petition
A. What method did EPA use to evaluate risk?
B. What other factors did EPA consider in its evaluation?
C. What conclusion did EPA reach?
V. Conditions for Exclusion
A. What conditions are associated with this exclusion?
B. What happens if B&W NOG fails to meet the conditions of this
exclusion?
VI. How would this action affect states?
VII. When would the proposed exclusion be finalized?
VIII. Statutory and Executive Order Reviews
I. Background
A. What is a listed hazardous waste?
EPA published amended lists of hazardous wastes from non-specific
and specific sources on January 16, 1981, as part of its final and
interim final regulations implementing Section 3001 of RCRA. These
lists have been amended several times, and are found at 40 CFR 261.31
and 261.32.
We list 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 40 CFR 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).
We also define residues from the treatment, storage, or disposal of
listed hazardous wastes and mixtures containing listed hazardous wastes
as hazardous wastes. (See 40 CFR 261.3(a)(2)(iv) and (c)(2)(i),
referred to as the ``mixture'' and ``derived-from'' rules,
respectively).
B. What laws and regulations give EPA the authority to delist waste?
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 that would otherwise meet
the listing description may not be.
For this reason, a procedure to exclude or delist a waste was
established based on the discretionary authority of Section 2002(a)(1)
of RCRA. This procedure is contained in 40 CFR 260.20 and 260.22 and it
allows a person to petition EPA or an authorized state in order to
demonstrate that a specific listed waste from a particular generating
facility should not be regulated as a hazardous waste.
C. What is a delisting petition?
A delisting petition is a request from a facility to EPA or an
authorized State to exclude waste from the list of hazardous wastes on
a site-specific basis. A facility petitions EPA because it does not
believe the waste should be hazardous under RCRA regulations.
In a delisting petition, the petitioner must show that waste
generated at a particular facility does not meet any of the criteria
for which the waste was listed. The criteria which EPA uses to evaluate
a waste for listing are found in 40 CFR 261.11. An explanation of how
these criteria apply to a waste is contained in the background document
for that particular listed waste.
In addition to the criteria that we used when we originally listed
the waste, a petitioner must demonstrate that the waste does not
exhibit any of the hazardous waste characteristics found in 40 CFR part
261, subpart C, and must present sufficient information for EPA to
decide whether factors other than those for which the waste was listed
warrant retaining it as a hazardous waste as required by Section
3001(f) of RCRA (42 U.S.C. 6921(f)) and 40 CFR 260.22(a).
Generators remain obligated under RCRA to confirm that their waste
remains nonhazardous based on the hazardous waste characteristics even
if EPA or an authorized state has ``delisted'' the waste and to ensure
that future generated wastes meet the conditions set forth.
II. What did B&W NOG request in its petition?
On September 30, 1994, B&W NOG (then known as Babcock and Wilcox)
petitioned EPA to exclude from the lists of hazardous waste listed at
40 CFR 261.31, both past and currently generated sludge produced by its
wastewater treatment facility. This sludge was derived from the
treatment of wastewaters in the pickle acid treatment system and was
designated as EPA Hazardous Waste No. F006 (wastewater treatment sludge
from electroplating operations). On August 9, 1999 (64 FR 42317), EPA
proposed, and on January 14, 2000 (65 FR 2337), EPA finalized, a
conditional exclusion for the facility (then known as BWX Technologies)
delisting the currently generated filter cake solids from its pickle
acid wastewater treatment system.
As explained in EPA's proposed exclusion of August 4, 1999, the
previously generated sludge was classified as a ``mixed waste'' under
RCRA. A mixed waste is defined as a waste that contains both a
radioactive component subject to the Atomic Energy Act (AEA), and a
hazardous component subject to RCRA.
RCRA regulations are promulgated under one of two statutory
authorities which are (1) the original RCRA authority (or base program)
and (2) the Hazardous and Solid Waste Amendments of 1984 (HSWA). The
hazardous components of mixed wastes are subject to RCRA base program
jurisdiction. Under Section 3006 of RCRA, EPA may authorize qualified
states to administer and enforce the RCRA hazardous waste program
within the state. When new, more stringent federal requirements are
promulgated or enacted, the state is obligated to enact equivalent
authority within specified time frames. New federal requirements do not
take effect in authorized states until the state adopts the
requirements as state law.
Up until 1986, the applicability of RCRA to mixed waste was
unclear. To address this issue, EPA issued a clarification notice on
July 3, 1986 (51 FR 24504). In that notice, EPA announced that the
hazardous component of mixed waste was subject to RCRA jurisdiction and
that the radioactive portion of the waste (source, special nuclear, and
by-product material) was subject to the Atomic Energy Act (AEA). EPA
also required states which had obtained RCRA base program authorization
prior to the July 3, 1986 notice to revise their programs to clarify
the regulatory status of mixed waste (i.e., to include the hazardous
component of mixed waste in their program definition of solid waste),
and to apply to EPA for authorization of their revised program. The
Commonwealth of Virginia had been granted authorization to administer
the RCRA base program prior to July 3, 1986. However, when EPA granted
the above referenced exclusion on January 14, 2000, Virginia had not
been specifically authorized for mixed waste.
In a State which was authorized for the RCRA base program, but not
specifically authorized for mixed waste, the waste was not subject to
the Federal hazardous waste requirements. Mixed waste remained outside
Federal jurisdiction until the State revised its program and received
authorization specifically for mixed waste. Therefore,
[[Page 62042]]
at the time of the January 14, 2000 exclusion, EPA could not consider
the previously generated sludge at B&W NOG for exclusion.
The Virginia Department of Environmental Quality's (VADEQ's)
authorization for the mixed waste portion of the RCRA program became
effective on September 29, 2000. At that time, mixed waste in the
Commonwealth of Virginia became subject to Federal RCRA jurisdiction.
Beginning in May 2001, B&W NOG informally submitted information on
the sludge that was deposited in two on-site surface impoundments
designated as Final Effluent Ponds (FEPs) 1 and 2. Because FEP 1
received effluent from the low level radioactive waste treatment system
in the past and FEP 2 currently receives effluent from the low level
radioactive waste treatment system, the FEP sludge in both units
includes a Nuclear Regulatory Commission (NRC) regulated radioactive
component, and therefore, is a mixed waste designated as EPA hazardous
waste No. F006.
On February 21, 2003, BWX Technologies, Inc. petitioned EPA to
exclude from the lists of hazardous waste contained in 40 CFR 261.31 on
a one-time basis, the sludge which was deposited in FEPs 1 and 2
because it believed that the petitioned waste did not meet any of the
criteria for which the waste was listed and because there were no
additional constituents or factors that would cause the waste to be
hazardous. The volume of sludge contained in each FEP was, at that
time, determined to be 6,600 cubic yards, for a combined sludge volume
of 13,200 cubic yards.
On September 3, 2008, B&W NOG notified EPA that it had successfully
completed a sludge removal project at FEPs 1 and 2. Sludge was removed
from these units and disposed of at a mixed waste disposal facility
permitted under the authority of both RCRA and the Atomic Energy Act,
as amended. B&W NOG conservatively estimated that of the 13,200 cubic
yards of sludge in both units, only 148 cubic yards (less than 2
percent of the original volume) remained. In this notification, B&W NOG
requested that its petition be amended to reflect the reduced volume,
and that the Agency proceed with the delisting request based on the new
volume.
III. Waste-Specific Information
A. How was the waste generated?
B&W NOG is engaged in the production and assembly of nuclear
components primarily for the United States government at its Mt. Athos
facility near Lynchburg, Virginia. This activity includes the use of
special nuclear materials, primarily unirradiated enriched uranium. B&W
NOG's operations include the recovery and purification of scrap uranium
and uranium downblending. B&W NOG's operations are regulated under
Nuclear Regulatory Commission License SNM-42.
B&W NOG is primarily a metal fabricator (SIC No. 3443), involving
the fabrication of metal components from stock metals through various
machining processes, welding, grinding, pickling and final assembly.
Secondary operations include the recovery of uranium fuel, the research
and development of uranium fuel manufacturing techniques and
downblending operations.
Hydrofluoric acid and nitric acid are used in combination by B&W
NOG in the pickling and cleaning of specialty metals. Some of these
spent pickling and cleaning solutions and rinse waters are treated on-
site in the pickle acid and low level radioactive wastewater treatment
systems.
Support facilities at the Mt. Athos site include a steam plant,
process water treatment and wastewater treatment facilities.
The Lynchburg Technology Center (LTC) houses B&W NOG headquarters,
B&W Nuclear Power Generation Group, Inc. laboratories and B&W Corporate
Service Centers. Wastewater generated at the LTC is piped to the B&W
NOG for treatment. Solid wastes produced at the LTC are delivered to
B&W NOG for recycling and/or disposal.
The wastewaters generated at the B&W NOG facility are treated in an
on-site wastewater treatment plant that consists of four discrete
wastewater treatment systems. They are the low level radioactive waste
treatment system, pickle acid waste treatment system, sanitary waste
treatment system, and water production waste treatment system. Once-
through non-contact cooling water does not require treatment and
discharges directly to FEP 1. Both FEPs have each received a
combination of these wastewater streams during their operating history.
The FEPs are two surface impoundments located adjacent to the James
River at the B&W NOG Mt. Athos site. The FEPs are part of the VADEQ
permitted industrial wastewater system (Virginia Pollutant Discharge
Elimination System (VPDES) Permit No. VA0003697) and they provide
equalization of the liquid effluent for control of pH and suspended
solids.
B&W NOG's wastewater neutralization processes generate
precipitation solids which are removed by filter presses. The remaining
suspended solids are discharged with wastewater and gradually
accumulate in the FEPs as sludge. The FEP sludge consists in part of
suspended solids which carry over into the units in the effluent from
the filter presses that remove solids in the pickle acid waste
treatment system, and additional suspended solids which enter the units
from the low level radioactive, and grit-blast wastewater treatment
systems.
FEP 1 was placed in service in 1973, with a nominal capacity of
2,000,000 gallons. FEP 2 was placed in service in 1979, with a nominal
capacity of 1,900,000 gallons. Although the routing of treated
wastewaters into these FEPs has changed throughout the operating
history of the units, at some point in their history they have both
received suspended solids from the pickle acid treatment system and the
low level radioactive treatment system, as well as various process or
sanitary wastewaters. It is the pickle acid treatment system suspended
solids that resulted in the formation of F006 sludge prior to the
January 14, 2000 delisting.
The current configuration of wastewater streams discharged to each
FEP is as follows:
FEP 1 receives non-industrial processing operations wastewater
consisting of wastewater from the water production (deionized and make-
up non-contact cooling water) treatment system and once through non-
contact cooling water.
FEP 2 receives industrial processing operations wastewater
consisting of wastewater from the pickle acid waste treatment system,
the low level radioactive treatment system and the grit blast waste
treatment system.
Wastewater from the sanitary waste treatment system discharges
directly to the James River through a VPDES permitted outfall.
B. What information did B&W NOG submit to support its petition?
To provide a comprehensive sludge sampling strategy of the FEPs, a
two-phase sampling and analysis plan was implemented by B&W NOG.
Phase 1 involved the collection of fully penetrating core samples
of sludge from four representative locations in each FEP. These samples
were analyzed for a comprehensive list of chemical constituents and
other analytical parameters, including the 40 CFR Part 264 Appendix IX
(Ground-Water Monitoring List) analytes for the metal, volatile organic
carbon, semivolatile
[[Page 62043]]
organic compound, polychlorinated biphenyl (PCB), and dioxin/furan
groups; plus formaldehyde, based on process knowledge. Other analytical
parameters included total cyanide, fluoride, oil and grease, sulfide,
water content, corrosivity and ignitability. The sludge
characterization included analyses for both total concentrations and
toxicity characteristic leaching procedure (TCLP) concentrations. In
addition to the standard TCLP performed on all samples using an acidic
leaching fluid, one sample from each FEP was tested utilizing the TCLP
procedure but substituting two different leaching fluids. The
additional leaching fluids were: (1) Reagent water with a neutral pH;
and (2) an alkaline solution of sodium bicarbonate and sodium carbonate
with a pH of 10.
The Phase 2 chemical characterization involved the collection and
analysis of thirteen independent composite samples of sludge, seven
from FEP 1 and six from FEP 2. Each composite sample was comprised of
continuous sludge cores collected from four randomly selected locations
within a 10,000 square foot sub-section of the unit. Samples were
analyzed for an abbreviated list of constituents which were selected
based on the results of the comprehensive chemical analyses performed
on sludge samples collected in the Phase 1 chemical characterization.
The Phase 2 analytes were fluoride, 1,2-dichloroethane,
tetrachloroethane, trichloroethene, cadmium, copper, mercury, nickel,
thallium, PCBs and dioxins/furans.
The Phase 2 sludge samples were analyzed for both total and
leachable concentrations of each analyte. In Phase 2, only one leaching
test using the TCLP procedure was performed for each analyte. Each
analyte was tested using the leaching fluid that produced the highest
soluble concentration of that analyte in the Phase 1 characterization.
The maximum total constituent and maximum leachate concentrations
for all detected inorganic constituents in B&W NOG's waste samples are
presented in Table 1.
The detection limits presented in Table 1 represent the lowest
concentrations quantifiable by B&W NOG using appropriate methods to
analyze the waste.
Table 1--Maximum Total Constituent and Leachate Concentrations \1\ in
Sludge
------------------------------------------------------------------------
Total
constituent TCLP Leachate
Inorganic constituents concentration concentration
(mg/kg) (mg/l)
------------------------------------------------------------------------
Antimony............................ 1.12 0.002555
Arsenic............................. 2.56 0.000972
Barium.............................. 52.3 0.355
Beryllium........................... 0.429 0.00914
Cadmium............................. 14 0.0323
Chromium............................ 198 0.132
Cobalt.............................. 2.03 0.0546
Copper.............................. 2390 633
Lead................................ 7.73 0.00528
Mercury............................. 1.7 < 0.00004
Nickel.............................. 93.1 2.49
Selenium............................ 0.447 0.00181
Silver.............................. 148 0.0351
Thallium............................ 0.544 0.00481
Tin................................. 279 0.01375
Vanadium............................ 9.6 0.028
Zinc................................ 126 1.75
Cyanide (total)..................... 0.245 0.01225
Fluoride............................ 722 182
------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent
found in any sample. These levels do not necessarily represent the
specific levels found in any one sample.
< Denotes that the constituent was not detected at the concentration
specified in the table.
The maximum total constituent and maximum leachate concentrations
for all detected organic constituents in B&W NOG's waste samples are
presented in Table 2.
The detection limits presented in Table 2 represent the lowest
concentrations quantifiable by B&W NOG using appropriate methods to
analyze the waste.
Table 2--Maximum Total Constituent and Leachate Concentrations \1\ in
Sludge
------------------------------------------------------------------------
Total
constituent TCLP leachate
Organic constituents concentration concentration
(mg/kg) (mg/l)
------------------------------------------------------------------------
Acetone............................. 0.371 0.212
Benzene............................. 0.0051 0.0026
Benzoic acid........................ < 4.57 0.0028
Benzo(b)fluoranthene................ 0.388 < 0.0115
bis(2-Ethylhexyl)phthalate.......... 2.265 0.0028
2-Butanone (methyl ethyl ketone).... 0.0544 < 0.01
Carbon disulfide.................... 0.0136 < 0.01
Carbon tetrachloride................ < 0.0202 0.0024
[[Page 62044]]
Chloroform.......................... < 0.0202 0.0024
1,2-Dichloroethane.................. < 0.0202 0.0029
1,1-Dichloroethene.................. < 0.0202 0.0026
cis-1,2-Dichloroethene.............. 0.0136 < 0.01
Diethylphthalate.................... < 4.57 0.0056
Diphenylamine....................... < 4.57 0.0135
Fluoranthene........................ 3.385 0.0021
2-Hexanone.......................... 0.0253 < 0.01
1-Methylnaphthalene................. < 4.57 0.0012
2-Methylnaphthalene................. < 4.57 0.0011
3-Methylphenol (m-cresol)........... < 4.57 0.0017
4-Nitroaniline...................... < 4.57 0.0027
Total PCBs.......................... 0.23 < 0.0084
Pyrene.............................. 0.535 < 0.0115
2,3,7,8-TCDD \2\.................... 0.0000035 0.00000000101
Tetrachloroethene................... 0.220 0.0083
1,1,1,-Trichloroethane.............. < 0.0202 0.0014
Trichloroethene..................... 1.2 0.015
Trichlorofluoromethane.............. < 0.0202 0.0011
1,2,4-Trimethylbenzene.............. 0.0232 < 0.01
m,p-Xylenes......................... < 0.0202 0.0018
------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent
found in any sample. These levels do not necessarily represent the
specific levels found in any one sample.
\2\ For risk assessment of PCDDs and PCDFs compounds, toxicity values
are expressed as 2,3,7,8-TCDD equivalents (TEQs).
< Denotes that the constituent was not detected at the concentration
specified in the table.
B&W NOG also submitted groundwater monitoring data to support its
delisting request. Three groundwater monitoring wells had previously
been installed to monitor groundwater quality in the vicinity of the
FEPs as a requirement of VPDES Permit No. VA0003697, because it was
thought that constituents from the FEPs may be impacting groundwater
quality in the vicinity of the ponds. An additional groundwater
monitoring well located further downgradient between the ponds and the
James River was added to the monitoring network as a result of RCRA
corrective action investigations at the site.
Groundwater was sampled by B&W NOG over five quarters (starting in
February 2001) to support this delisting request. These samples were
analyzed for the 40 CFR Part 264 Appendix IX (Ground-Water Monitoring
List) analytes for the metal, volatile organic carbon, semivolatile
organic compound, and polychlorinated biphenyl (PCB) groups. Other
analytical parameters included total cyanide, fluoride, and sulfide. An
examination of the results shows that several chemicals were detected
in one or more wells, some above an established Agency health-based
level (e.g., a Maximum Contaminant Level (MCL) promulgated at 40 CFR
part 141, pursuant to the Safe Drinking Water Act, 41 U.S.C. Section
300g-1). However, in order to evaluate the source of contamination,
upgradient and downgradient concentrations of contaminants were
compared. Based on an evaluation of this data, it was determined that
the FEPs are not the source of the groundwater contamination with one
exception. Of the constituents that are elevated above a health-based
level in downgradient wells, only fluoride cannot be attributed to a
contamination source upgradient of the FEPs. Fluoride is present at
elevated levels in all three of the downgradient wells and exceeded
EPA's MCL in one of these wells with a maximum fluoride concentration
of 18.1 mg/l.
EPA requires that petitioners submit signed certifications
affirming the truthfulness, accuracy and completeness of the
information in their delisting petitions (See 40 CFR 260.22(i)(12)).
B&W NOG submitted signed certifications stating that all submitted
information is true, accurate and complete.
IV. EPA's Evaluation of the Petition
A. What method did EPA use to evaluate risk?
Because the sludge that is the subject of this delisting petition
contains low levels of radioactivity, it is, and if delisted by EPA,
will remain subject to NRC regulations. Although the sludge currently
resides in the FEPs and will continue to do so for many years, the FEPs
will be subject to NRC decommissioning rules when they are taken out of
service. At that time, any sludge remaining in the units will have to
be removed and disposed of in a facility licensed to accept low-level
radioactive waste.
We evaluated B&W NOG's waste using the Agency's Delisting Risk
Assessment Software Program (DRAS) version 3.0 to estimate the
potential releases of waste constituents and to predict the risk
associated with those releases. DRAS performs a multi-pathway and
multi-chemical risk assessment to determine the potential impact of a
waste disposed of in a landfill or surface impoundment. The sludge
which is the subject of this petition is not a liquid, however, it
currently resides in units that are designed as surface impoundments.
In order to be conservative in our evaluation of potential risk, we
performed an evaluation of this waste using the DRAS surface
impoundment module in addition to the DRAS landfill module. The process
that we used to adapt the sludge data for use in the surface
impoundment module is described in the docket for this proposed rule.
For the DRAS evaluation, we considered transport of the hazardous
waste constituents present in the waste through groundwater, surface
water and air. The evaluation is based on a reasonable worst-case
(least protective)
[[Page 62045]]
disposal scenario for B&W NOG's petitioned waste even though the waste
will remain subject to more stringent NRC disposal regulations.
DRAS uses a fate and transport model to predict the release of
hazardous constituents from the petitioned waste, in order to evaluate
the potential impact on human health and the environment. DRAS
accomplishes this using several EPA models including the EPA Composite
Model for Leachate Migration with Transformation Products (EPACMTP)
fate and transport model which calculates dilution/attenuation factors
for evaluating impacts on groundwater. From a release to groundwater,
DRAS considers routes of exposure to a human receptor of direct
ingestion of contaminated groundwater, inhalation from groundwater
while showering and dermal contact from groundwater while bathing.
From a release to surface water by erosion of waste from an open
landfill into storm water runoff, DRAS evaluates the exposure to a
human receptor by ingestion of fish and direct ingestion of drinking
water. From a release of volatile emissions from a surface impoundment
and waste particles, and a release of volatile emissions to the air
from the surface of an open landfill, DRAS considers routes of exposure
of inhalation of volatile constituents, inhalation of particles, and
air deposition of particles on residential soil with subsequent
ingestion of the contaminated soil by a child.
The volatile emission evaluation in the DRAS version 3.0 surface
impoundment module currently does not produce valid results due to an
operational problem with the software. Furthermore, the methodology
currently used by DRAS to estimate volatile emissions does not produce
a very conservative estimate of average volatile emission rates.
Therefore, we prepared an independent calculation of volatile emissions
from these surface impoundments using the methodologies presented in
Chapter 5.0 (Surface Impoundments and Open Tanks) of the EPA report,
``Air Emissions Models for Waste and Wastewater,'' November 1994, EPA-
453/R-94-080A. This report can be found at: http://www.epa.gov/ttn/chief/software/water/air_emission_models_waste_wastewater.pdf.
Chapter 5.0 of this report is included in the docket for this proposed
rule.
The calculated emission rates were then run through a dispersion
model to estimate downwind concentrations. The methodology used is
described in section 2.3.2.4 (Calculation of Downwind Waste Constituent
Concentration in Air at the POE Surface Impoundment) of Chapter 2 of
the RCRA Delisting Technical Support Document. Risk and hazard from
these estimated downwind concentrations were determined using the
methods presented in Chapter 4 (Risk and Hazard Assessment) of the DRAS
Delisting Technical Support Document.
For a detailed description of the DRAS program, the software
itself, the Delisting Technical Support Document, and the DRAS version
3.0 User's Guide, go to: http://www.epa.gov/reg5rcra/wptdiv/hazardous/delisting/dras-software.html.
In addition to the chemical constituents contained in the DRAS
database and whose properties are described in the RCRA Delisting
Technical Support Document, Appendix A, Chemical Specific Data, three
additional constituents were detected in B&W NOG's sludge samples.
These chemical constituents are 1-methylnaphthalene, 1,2,4-
trimethylbenzene, and 2-hexanone. These chemicals were added to the
DRAS database so that they would be included in the risk analysis. The
chemical specific data that we used for each of these chemical
constituents can be found in the docket for this proposed rule.
For constituents which are not detected in leachate analysis, DRAS
requires that the detection limit be entered along with the other data.
In these circumstances, DRAS uses one-half the detection limit to
calculate risk. We believe it is inappropriate to evaluate constituents
which are not detected in any sample analyzed if an appropriate
analytical method was used.
Similarly, DRAS also predicts possible risks associated with
releases of waste constituents through surface pathways (e.g.,
volatilization or wind-blown particulate from the landfill). As in the
groundwater analyses, DRAS uses the established acceptable risk level,
the health-based data, and standard risk assessment and exposure
algorithms to perform this assessment.
In most cases, because a delisted waste is no longer subject to
hazardous waste regulation, the Agency is generally unable to predict,
and does not presently control, how a petitioner will manage a waste
after it is excluded. Therefore, we believe that it is inappropriate to
consider extensive site-specific factors when applying the fate and
transport model.
However, as discussed earlier in this preamble, the waste that is
being considered for delisting in this B&W NOG petition contains a
radioactive component and, therefore, will remain subject to NRC
jurisdiction.
For a one-time delisting petition, we determine cumulative risk.
Beginning with the leachate and total waste concentrations for each
constituent in the waste (source concentrations), the waste volume and
exposure parameters are used to estimate the upper-bound excess
lifetime cancer risks (risk) and noncarcinogenic hazards (hazard).
If a delisting evaluation is performed for a one-time exclusion,
DRAS computes the cumulative carcinogenic risk by summing the
carcinogenic risks for all waste constituents for a given exposure
pathway and then summing the carcinogenic risks for each pathway
analyzed in the delisting risk assessment. DRAS also computes the
cumulative noncarcinogenic hazard by summing the Hazard Quotients for
all waste constituents for a given exposure pathway to obtain exposure
pathway-specific Hazard Indices (HIs), and then summing the HIs
associated with each exposure pathway analyzed.
For a one-time delisting, EPA Region III evaluates the cumulative
cancer risk and cumulative hazard index of the petitioned waste. A
cumulative cancer risk less than 1 x 10-4 and a cumulative
hazard index less than or equal to 1 are considered to be protective of
human health and will be considered acceptable for this type of
delisting determination.
B. What other factors did EPA consider in its evaluation?
We also consider the applicability of groundwater monitoring data
during the evaluation of delisting petitions where the petitioned waste
is currently managed or was once managed in a land-based unit (e.g., a
landfill or surface impoundment).
We use the results of groundwater monitoring data evaluations as a
check on the reasonable worst case evaluations performed, in order to
provide an additional level of confidence in our delisting decisions.
Because groundwater monitoring data are normally descriptive of the
impact of the petitioned waste under actual conditions, and not
reasonable worst case assumptions, evidence of groundwater
contamination originating from a land-based waste management unit may
be a factor resulting in petition denial.
Regarding the fluoride in the groundwater, B&W NOG makes the
argument that the fluoride concentrations can be attributed to a source
other than the FEP sludge which is the subject of this delisting
request. As previously discussed in this preamble, the FEPs are used as
equalization ponds for treating
[[Page 62046]]
industrial effluent and are part of B&W NOG's VPDES permitted
wastewater treatment system that discharges to the James River.
In support of its position that the sludge is not the source of the
fluoride in the groundwater, B&W NOG submitted the following two
documents regarding the chemistry of fluoride: A declaration of David
W. Griffiths, Ph.D., regarding the use and disposition of fluorine
containing compounds at the Mt. Athos site dated February 17, 2003, and
a white paper on calcium fluoride solubility submitted to EPA on July
27, 2009. Both of these documents can be found in the docket for this
proposed rule.
Based on the wastewater treatment chemistry, B&W NOG has
demonstrated that the fluoride in the sludge is present in the form of
calcium fluoride, an insoluble precipitate. In contrast, the fluoride
in the effluent is in a dissolved form (sodium fluoride) that can
migrate through the soil and affect the underlying groundwater. The
fluoride content in this effluent is regulated under B&G NOG's existing
VPDES permit. The fluoride in the groundwater has been evaluated
through a site-specific risk assessment. The actual area of fluoride
contamination is very limited and the conclusion of the risk assessment
accepted by VADEQ was that the risk to human health and the environment
was so low that no action by B&G NOG was required to address this
contamination.
C. What conclusion did EPA reach?
EPA has concluded that the information provided by B&W NOG provides
a reasonable basis to grant B&W NOG's petition. We, therefore, propose
to grant B&W NOG a one-time delisting for the 148 cubic yards of
petitioned sludge currently residing in the FEPs. The data submitted to
support the petition and the Agency's evaluation show that the
constituents in the FEP sludge are below health-based levels used by
the Agency for delisting decision-making, and that the sludge does not
exhibit any of the characteristics of a hazardous waste as described in
40 CFR part 261 subpart C.
For this delisting determination, we used information gathered to
identify plausible exposure routes (i.e., groundwater, surface water,
air) for hazardous constituents present in the petitioned waste. We
applied the DRAS described above to predict potential concentrations of
hazardous constituents that may be released from the petitioned waste
after disposal using both the landfill and surface impoundment modules.
We performed a separate and more conservative evaluation of volatile
emissions from surface impoundments using the methodology described in
the EPA report, ``Air Emissions Models for Waste and Wastewater'' (as
described earlier in this preamble.) We determined the potential impact
of the disposal of B&W NOG's waste on human health and the environment.
The estimated total cumulative risk as calculated using the DRAS
landfill scenario is 2.5 x 10-7. The estimated total
cumulative risk as calculated using both the DRAS surface impoundment
scenario and the methodology in the EPA report, ``Air Emissions Models
for Waste and Wastewater'' is 2.0 x 10-6. We conclude that
these risks are acceptable because, for a one-time delisting, EPA
Region III considers a cumulative cancer risk less than 1 x
10-4 to be protective of human health.
The estimated cumulative hazard index for this waste as calculated
by DRAS using the landfill scenario is 4.6 x 10-2. The
estimated cumulative hazard index for this waste as calculated using
both the DRAS surface impoundment scenario and the methodology in the
EPA report, ``Air Emissions Models for Waste and Wastewater'' is 1.3 x
10-1. We likewise conclude that these risks are acceptable
because, for a one-time delisting, EPA Region III considers a
cumulative hazard index less than or equal to 1 to be protective of
human health.
We conclude that the data submitted in support of the petition show
that the waste will not pose a threat when relieved of Subtitle C
requirements. We, therefore, propose to grant B&W NOG's request for a
one-time delisting for the 148 cubic yards of sludge currently residing
in B&W NOG's FEPs.
V. Conditions for Exclusion
A. What conditions are associated with this exclusion?
The proposed exclusion would apply only to the estimated 148 cubic
yards of sludge currently residing in B&W NOG's FEPs.
If B&W NOG 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, B&W NOG will be required
to report any information relevant to that condition or assumption in
writing to the Regional Administrator and the Virginia Department of
Environmental Quality within 10 calendar days of discovering that
condition.
The purpose of this condition is to require B&G NOG 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.
(1978), (APA), to reopen the delisting under the conditions described
above.
In order to adequately track wastes that have been delisted, in the
event that a decision is made to dispose of all or of part of the
sludge off-site, we will require that B&W NOG provide a one-time
notification to any state regulatory agency to which or through which
the delisted waste will be transported for disposal. B&W NOG 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.
B. What happens if B&W NOG fails to meet the conditions of this
exclusion?
If B&W NOG violates the terms and conditions established in the
exclusion, the Agency may start procedures to withdraw the exclusion,
and may initiate enforcement actions.
VI. How would this action affect states?
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, B&W
[[Page 62047]]
NOG must obtain delisting authorization from that State before the
waste may be managed as nonhazardous in that State.
VII. When would the proposed exclusion be finalized?
EPA is today making a tentative decision to grant B&W NOG'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. In light of
the unnecessary hardship and expense that would be imposed on this
petitioner by an effective date six months after publication and the
fact that a six-month deadline is not necessary to achieve the purpose
of RCRA Section 3010, EPA has determined 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 Administrative Procedures Act, 5 U.S.C. 553(d).
VIII. Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this rule is not of general applicability
and therefore is not a regulatory action subject to review by the
Office of Management and Budget (OMB). 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.) because it applies to a
particular facility only. Because this rule is 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, 204, and 205 of the
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because
this rule will affect only a particular facility, it will not
significantly or uniquely affect small governments, as specified in
section 203 of UMRA. Because this rule will affect only a particular
facility, this proposed rule does not have federalism implications. It
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, ``Federalism,'' (64
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply
to this rule. Similarly, because this rule will affect only a
particular facility, this proposed rule does not have tribal
implications, as specified in Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments'' (65 FR 67249, November 9,
2000). Thus, Executive Order 13175 does not apply to this rule. This
rule also is not subject to Executive Order 13045, ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant as
defined in Executive Order 12866, and because the Agency does not have
reason to believe the environmental health or safety risks addressed by
this action present a disproportionate risk to children. The basis for
this belief is that the Agency used the DRAS program, which considers
health and safety risks to infants and children, to calculate the
cumulative carcinogenic and noncarcinogenic risk. This rule is not
subject to Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866. 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 note) do
not apply. As required by section 3 of Executive Order 12988, ``Civil
Justice Reform,'' (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. The Congressional Review Act, 5 U.S.C.
801 et seq., as added by the Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides that before a rule may take
effect, the agency promulgating the rule must submit a rule report
which includes a copy of the rule to each House of the Congress and to
the Comptroller General of the United States. Section 804 exempts from
section 801 the following types of rules (1) rules of particular
applicability; (2) rules relating to agency management or personnel;
and (3) rules of agency organization, procedure, or practice that do
not substantially affect the rights or obligations of non-agency
parties, 5 U.S.C. 804(3). EPA is not required to submit a rule report
regarding this action under section 801 because this is a rule of
particular applicability. Executive Order (EO) 12898 (59 FR 7629 (Feb.
16, 1994)) establishes Federal executive policy on environmental
justice. Its main provision directs federal agencies, to the greatest
extent practicable and permitted by law, to make environmental justice
part of their mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities on minority
populations and low-income populations in the United States. EPA has
determined that this proposed rule will not have disproportionately
high and adverse human health or environmental effects on minority or
low-income populations because it does not affect the level of
protection provided to human health or the environment. The Agency's
risk assessment did not identify risks from management of this material
in a RCRA Subtitle D landfill or surface impoundment. Therefore, EPA
does not believe that any populations in proximity of the landfills or
surface impoundments used by this facility should be adversely affected
by common waste management practices for this delisted waste.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: September 24, 2010.
William C. Early,
Acting Regional Administrator, Region III.
For the reasons set forth 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. Table 1 of Appendix IX of Part 261 is amended to add the
following waste stream in alphabetical order by facility to read as
follows:
Appendix IX to Part 261--Wastes Excluded Under Sec. Sec. 260.20 and
260.22
[[Page 62048]]
Table 1--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Babcock & Wilcox Nuclear Operations Lynchburg, Virginia........ Wastewater treatment sludge from
Group, Inc., current owner, and BWX electroplating operations (Hazardous
Technologies, Inc., predecessor in Waste Number F006) generated at the Mt.
interest to the current owner, Athos facility near Lynchburg, VA and
identified collectively hereafter as currently deposited in two on-site
``B&W NOG''. surface impoundments designated as Final
Effluent Ponds (FEPs) 1 and 2. This is a
one-time exclusion for 148 cubic yards
of sludge and is effective after (insert
publication date of the final rule).
(1) Reopener language
(a) If B&W NOG discovers that any
condition or assumption related to the
characterization of the excluded waste
which was used in the evaluation of the
petition or that was predicted through
modeling is not as reported in the
petition, then B&W NOG must report any
information relevant to that condition
or assumption, in writing, to the
Regional Administrator and the Virginia
Department of Environmental Quality
within 10 calendar days of discovering
that information.
(b) Upon receiving information described
in paragraph (a) of this section,
regardless of its source, the Regional
Administrator will determine whether the
reported condition requires further
action. Further action may include
repealing the exclusion, modifying the
exclusion, or other appropriate action
deemed necessary to protect human health
or the environment.
(2) Notification Requirements
In the event that the delisted waste is
transported off-site for disposal, B&W
NOG must provide a one[dash]time written
notification to any State Regulatory
Agency to which or through which the
delisted waste described above will be
transported at least 60 calendar days
prior to the commencement of such
activities. Failure to provide such
notification will be deemed to be a
violation of this exclusion and may
result in revocation of the decision and
other enforcement action.
* * * * * * *
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[FR Doc. 2010-25319 Filed 10-6-10; 8:45 am]
BILLING CODE 6560-50-P