[Federal Register Volume 75, Number 61 (Wednesday, March 31, 2010)]
[Proposed Rules]
[Pages 16037-16046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7037]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R06-RCRA-2009-0549; SW-FRL-9131-6]
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: EPA is proposing to grant a petition submitted by Tokusen USA,
Inc. (called just Tokusen hereinafter) to exclude (or delist) a
wastewater treatment plant (WWTP) sludge filter cake (called just
sludge hereinafter) generated by Tokusen in Conway, AR from the lists
of hazardous wastes. EPA used the Delisting Risk Assessment Software
(DRAS) in the evaluation of the impact of the petitioned waste on human
health and the environment.
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, EPA would conclude that Tokusen's petitioned waste is
non-hazardous with respect to the original listing criteria. EPA would
also conclude that Tokusen's process minimizes short-term and long-term
threats from the petitioned waste to human health and the environment.
DATES: We will accept comments until April 30, 2010. We will stamp
comments postmarked after the close of the comment period as ``late.''
These ``late'' comments may not be considered in formulating a final
decision.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
RCRA-2009-0549 by one of the following methods:
1. Federal e-Rulemaking Portal: http://www.regulations.gov: Follow
the on-line instructions for submitting comments.
2. E-mail: [email protected].
3. Mail: Youngmoo Kim, Environmental Protection Agency, Multimedia
Planning and Permitting Division, RCRA Branch, Mail Code: 6PD-C, 1445
Ross Avenue, Dallas, TX 75202.
4. Hand Delivery or Courier: Deliver your comments to: Youngmoo
Kim, Environmental Protection Agency, Multimedia Planning and
Permitting Division, RCRA Branch, Mail Code: 6PD-C, 1445 Ross Avenue,
Dallas, TX 75202.
Instructions: Direct your comments to Docket ID No. EPA-R06-RCRA-
2009-0549. 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 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 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
[[Page 16038]]
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.
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, RCRA Branch, 1445 Ross Avenue, Dallas, TX 75202. The
hard copy RCRA regulatory docket for this proposed rule, EPA-R06-RCRA-
2009-0549, is available for viewing from 9 a.m. to 4 p.m., Monday
through Friday, excluding Federal holidays. 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. EPA requests that
you contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The interested persons wanting to
examine these documents should make an appointment with the office at
least 24 hours in advance.
FOR FURTHER INFORMATION CONTACT: For technical information regarding
the Tokusen, contact Youngmoo Kim at 214-665-6788 or by e-mail at
[email protected].
Your requests for a hearing must reach EPA by April 15, 2010. The
request must contain the information described in Sec. 260.20(d).
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What Action Is EPA Proposing?
B. Why is EPA Proposing To Approve This Delisting?
C. How Will Tokusen 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 EPA Consider in Deciding Whether To Grant a
Delisting Petition?
III. EPA's Evaluation of the Waste Information and Data
A. What Waste Did Tokusen Petition EPA To Delist?
B. Who Is Tokusen and What Process Does It Use To Generate the
Petitioned Waste?
C. How Did Tokusen Sample and Analyze the Data in This Petition?
D. What Were the Results of Tokusen's Analyses?
E. How Did EPA Evaluate the Risk of Delisting This Waste?
F. What Did EPA Conclude About Tokusen's Analysis?
G. What Other Factors Did EPA Consider in Its Evaluation?
H. What Is EPA's Evaluation of This Delisting Petition?
IV. Next Steps
A. With What Conditions Must the Petitioner Comply?
B. What Happens if Tokusen 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
Exclusion?
VI. Statutory and Executive Order Reviews
I. Overview Information
A. What Action Is EPA Proposing?
EPA is proposing:
(1) To grant Tokusen's delisting petition to have its WWTP sludge
excluded, or delisted, from the definition of a hazardous waste; and
subject to certain verification and monitoring conditions.
(2) To use the Delisting Risk Assessment Software (DRAS) to
evaluate the potential impact of the petitioned waste on human health
and the environment. The Agency used this model to predict the
concentration of hazardous constituents released from the petitioned
waste, once it is disposed.
B. Why Is EPA Proposing To Approve This Delisting?
Tokusen's petition requests an exclusion from the F006 waste
listing pursuant to 40 CFR 260.20 and 260.22. Tokusen does not believe
that the petitioned waste meets the criteria for which EPA listed it.
Tokusen also believes no additional constituents or factors could cause
the waste to be hazardous. 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) (hereinafter all sectional references are to 40 CFR
unless otherwise indicated). In making the initial delisting
determination, 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, EPA agrees with the petitioner that the waste is non-
hazardous with respect to the original listing criteria. If EPA had
found, based on this review, that the waste remained hazardous based on
the factors for which the waste was originally listed, EPA would have
proposed to deny the petition. 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. 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. EPA believes that the petitioned waste does not meet the
listing criteria and thus should not be a listed waste. EPA's proposed
decision to delist waste from Tokusen is based on the information
submitted in support of this rule, including descriptions of the wastes
and analytical data from the Conway, AR facility.
C. How Will Tokusen Manage the Waste, if It Is Delisted?
If the sludge is delisted, the WWTP sludge from Tokusen will be
disposed at a RCRA Subtitle D landfill: The Waste Management Industrial
Landfill, North Little Rock, Arkansas.
D. When Would the Proposed Delisting Exclusion Be Finalized?
RCRA section 3001(f) specifically requires EPA to provide a notice
and an opportunity for comment before granting or denying a final
exclusion. Thus, 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 USCA 6930(b)(1), allows rules to
become effective in less than six months 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.
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 16039]]
E. How Would This Action Affect States?
Because 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 which have
received authorization from EPA to make their own delisting decisions.
EPA allows states to impose their own non-RCRA regulatory
requirements that are more stringent than EPA's, under section 3009 of
RCRA, 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,
EPA urges petitioners to contact the state regulatory authority to
establish the status of their wastes under the state law.
EPA has also authorized some states (for example, Louisiana,
Oklahoma, Georgia, Illinois) to administer a RCRA 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 unless that state makes the rule part of its authorized program.
If Tokusen transports the petitioned waste to or manages the waste in
any state with delisting authorization, Tokusen must obtain delisting
authorization from that state before it can manage the waste as non-
hazardous in the state.
II. Background
A. What Is the History of the Delisting Program?
EPA published an amended list 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. EPA has
amended this list several times and published it in 40 CFR 261.31 and
261.32.
EPA lists these wastes as hazardous because: (1) The wastes
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), (2) the wastes
meet the criteria for listing contained in Sec. 261.11(a)(2) or
(a)(3), or (3) the wastes are mixed with or derived from the treatment,
storage or disposal of such characteristic and listed wastes and which
therefore become hazardous under Sec. 261.3(a)(2)(iv) or (c)(2)(i),
known as the ``mixture'' or ``derived-from'' rules, respectively.
Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
described in these regulations or resulting from the operation of the
mixture or derived-from rules generally is hazardous, a specific waste
from an individual facility may not be hazardous.
For this reason, 40 CFR 260.20 and 260.22 provide an exclusion
procedure, called delisting, which allows persons to prove that 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 EPA or an
authorized state to exclude wastes from the list of hazardous wastes.
The facility petitions 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 EPA lists a waste
are in part 261 and further explained in the background documents for
the listed waste.
In addition, under 40 CFR 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 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 non-hazardous based on the hazardous waste
characteristics even if EPA has ``delisted'' the waste.
C. What Factors Must EPA Consider in Deciding Whether To Grant a
Delisting Petition?
Besides considering the criteria in 40 CFR 260.22(a) and section
3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for
the listed wastes, EPA must consider any factors (including additional
constituents) other than those for which EPA listed the waste, if a
reasonable basis exists that these additional factors could cause the
waste to be hazardous.
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. EPA's Evaluation of the Waste Information and Data
A. What Waste Did Tokusen Petition EPA To Delist?
On March 25, 2009, Tokusen petitioned EPA to exclude from the lists
of hazardous wastes contained in Sec. 261.31, WWTP sludge (F006)
generated from its facility located in Conway, Arkansas. The waste
falls under the classification of listed waste pursuant to Sec.
261.31. Specifically, in its petition, Tokusen requested that EPA grant
a standard exclusion for 2,000 cubic yards per year of the WWTP sludge.
B. Who Is Tokusen and What Process Does It Use To Generate the
Petitioned Waste?
The Tokusen USA, Inc. facility produces high-carbon steel tire cord
for use in radial tire manufacturing. The steel cord is produced from
steel rod which has been reduced in size and electroplated with copper
and zinc to produce a brass coating. The facility generates F006 filter
cake by the dewatering of wastewater sludge generated at the on-site
wastewater treatment plants. This waste is stored on-site less than 90
days and is then transported from the site to the RCRA Subtitle C
facility, Chemical Waste Management in Sulphur, LA 70556.
C. How Did Tokusen Sample and Analyze the Data in This Petition?
To support its petition, Tokusen submitted:
(1) Historical information on waste generation and management
practices;
(2) Analytical results from four samples for total concentrations
of compounds of concern (COCs);
(3) Analytical results from four samples for Toxicity
Characteristic Leaching Procedure (TCLP) extract values of COCs; and
(4) Multiple pH testing for the petitioned waste.
D. What Were the Results of Tokusen's Analyses?
EPA believes that the descriptions of the Tokusen analytical
characterization provide a reasonable basis to grant Tokusen's petition
for an exclusion of the WWTP sludge. EPA believes the data submitted in
support of the petition show the WWTP sludge is non-hazardous.
Analytical data for the
[[Page 16040]]
WWTP sludge samples included in the March 2009 petition were used in
the DRAS to develop delisting levels. The data summaries for COCs are
presented in Table I. EPA has reviewed the sampling procedures used by
Tokusen and has determined that it satisfies EPA criteria for
collecting representative samples of the variations in constituent
concentrations in the WWTP sludge. In addition, the data submitted in
support of the petition show that constituents in Tokusen's waste are
presently below health-based levels used in the delisting decision-
making. EPA believes that Tokusen has successfully demonstrated that
the WWTP sludge is non-hazardous.
Analytical Results/Maximum Allowable Delisting Concentration
[Wastewater treatment sludge; Tokusen, Conway, Arkansas]
----------------------------------------------------------------------------------------------------------------
Maximum
Maximum total Maximum TCLP allowable TCLP
Constituents (mg/kg) (mg/L) delisting level
(mg/L)
----------------------------------------------------------------------------------------------------------------
Antimony..................................................... 11.9 <0.3 0.4
Arsenic...................................................... 26.3 J 0.12 1.59
Barium....................................................... 111 0.313 (100)
Chromium..................................................... 38.9 <0.02 (5.0)
Cobalt....................................................... <9.69 0.059 0.8
Copper....................................................... 4090 30 91.3
Lead......................................................... 334 0.06 2.32
Nickel....................................................... 35.6 0.774 50.5
Selenium..................................................... 253 0.21 (1.0)
Acetone...................................................... 0.0293 BJ 0.0429 1950
Zinc......................................................... 26400 553 748
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Notes:
1. These levels represent the highest constituent concentration found in any one sample and do not necessarily
represent the specific level found in one sample.
2. The delisting levels are from the DRAS analyses except the chemical concentrations with a parenthesis which
are the TCLP regulatory levels.
3. J: Estimated Value.
E. How Did EPA Evaluate the Risk of Delisting This Waste?
For this delisting determination, EPA used such information
gathered to identify plausible exposure routes (i.e., groundwater,
surface water, air) for hazardous constituents present in the
petitioned waste. EPA determined that disposal in a landfill is the
most reasonable, worst-case disposal scenario for Tokusen's petitioned
waste. EPA applied the Delisting Risk Assessment Software (DRAS)
described in 65 FR 58015 (September 27, 2000), 65 FR 75637 (December 4,
2000), and 73 FR 28768 (May 19, 2008) to predict the maximum allowable
concentrations of hazardous constituents that may be released from the
petitioned waste after disposal and determined the potential impact of
the disposal of Tokusen's petitioned waste on human health and the
environment. A copy of this software can be found on the world wide web
at http://www.epa.gov/reg5rcra/wptdiv/hazardous/delisting/dras-software.html. In assessing potential risks to groundwater, EPA used
the maximum waste volumes and the maximum reported extract
concentrations as inputs to the DRAS program to estimate the
constituent concentrations in the groundwater at a hypothetical
receptor well down gradient from the disposal site. Using the risk
level (carcinogenic risk of 10 -5 and non-cancer hazard
index of 1.0). The DRAS program can back-calculate the acceptable
receptor well concentrations (referred to as compliance-point
concentrations) using standard risk assessment algorithms and EPA
health-based numbers. Using the maximum compliance-point concentrations
and EPA's Composite Model for Leachate Migration with Transformation
Products (EPACMTP) fate and transport modeling factors, the DRAS
further back-calculates the maximum permissible waste constituent
concentrations not expected to exceed the compliance-point
concentrations in groundwater.
EPA believes that the EPACMTP fate and transport model represents a
reasonable worst-case scenario for possible groundwater contamination
resulting from disposal of the petitioned waste in a landfill, and that
a reasonable worst-case scenario is appropriate when evaluating whether
a waste should be relieved of the protective management constraints of
RCRA Subtitle C. The use of some reasonable worst-case scenarios
resulted in conservative values for the compliance-point concentrations
and ensures that the waste, once removed from hazardous waste
regulation, will not pose a significant threat to human health or the
environment.
The DRAS also uses the maximum estimated waste volumes and the
maximum reported total concentrations to predict possible risks
associated with releases of waste constituents through surface pathways
(e.g., volatilization from the landfill). As in the above groundwater
analyses, the DRAS uses the risk level, the health-based data and
standard risk assessment and exposure algorithms to predict maximum
compliance-point concentrations of waste constituents at a hypothetical
point of exposure. Using fate and transport equations, the DRAS uses
the maximum compliance-point concentrations and back-calculates the
maximum allowable waste constituent concentrations (or ``delisting
levels'').
In most cases, because a delisted waste is no longer subject to
hazardous waste control, EPA is generally unable to predict, and does
not presently control, how a petitioner will manage a waste after
delisting. Therefore, EPA currently believes that it is inappropriate
to consider extensive site-specific factors when applying the fate and
transport model. EPA does control the type of unit where the waste is
disposed. The waste must be disposed in the type of unit the fate and
transport model evaluates.
The DRAS results which calculate the maximum allowable
concentration of chemical constituents in the waste are presented in
Table I. Based on the comparison of the DRAS and TCLP Analyses results
found in Table I, the petitioned waste should be delisted
[[Page 16041]]
because no constituents of concern tested are likely to be present or
formed as reaction products or by-products in Tokusen waste.
F. What Did EPA Conclude About Tokusen's Analysis?
EPA concluded, after reviewing Tokusen's processes that no other
hazardous constituents of concern, other than those for which tested,
are likely to be present or formed as reaction products or by-products
in the waste. In addition, on the basis of explanations and analytical
data provided by Tokusen, pursuant to Sec. 260.22, EPA concludes that
the petitioned waste do not exhibit any of the characteristics of
ignitability, corrosivity, reactivity or toxicity. See Sec. Sec.
261.21, 261.22 and 261.23, respectively.
G. What Other Factors Did EPA Consider in Its Evaluation?
During the evaluation of Tokusen's petition, EPA also considered
the potential impact of the petitioned waste via non-groundwater routes
(i.e., air emission and surface runoff). With regard to airborne
dispersion in particular, EPA believes that exposure to airborne
contaminants from Tokusen's petitioned waste is unlikely. Therefore, no
appreciable air releases are likely from Tokusen's waste under any
likely disposal conditions. EPA evaluated the potential hazards
resulting from the unlikely scenario of airborne exposure to hazardous
constituents released from Tokusen's waste 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 Tokusen's WWTP
waste.
H. What Is EPA's Evaluation of This Delisting Petition?
The descriptions of Tokusen's hazardous waste process and
analytical characterization provide a reasonable basis for EPA to grant
the exclusion. The data submitted in support of the petition show that
constituents in the waste are below the leachable concentrations (see
Table I). EPA believes that Tokusen's waste, F006 from copper and zinc
electroplating process to produce a brass coating will not impose any
threat to human health and the environment.
Thus, EPA believes Tokusen should be granted an exclusion for the
WWTP sludge. EPA believes the data submitted in support of the petition
show Tokusen's WWTP sludge is non-hazardous. The data submitted in
support of the petition show that constituents in Tokusen's waste are
presently below the compliance point concentrations used in the
delisting decision and would not pose a substantial hazard to the
environment. EPA believes that Tokusen has successfully demonstrated
that the WWTP sludge is non-hazardous.
EPA therefore, proposes to grant an exclusion to Tokusen in Conway,
Arkansas, for the WWTP sludge described in its petition. EPA's decision
to exclude this waste is based on descriptions of the treatment
activities associated with the petitioned waste and characterization of
the WWTP sludge.
If EPA finalizes the proposed rule, EPA will no longer regulate the
petitioned waste under Parts 262 through 268 and the permitting
standards of Part 270. Tokusen must comply with the LDR requirements
before disposing of the delisted waste because the LDR attaches at the
point of generation of the waste. The delisting, if granted, will
absolve the generator from his obligation of handling the waste as
hazardous. The appropriate waste code for this waste is F006. The LDR
treatment standard for F006 is found in 40 CFR 268.40.
IV. Next Steps
A. With What Conditions Must the Petitioner Comply?
The petitioner, Tokusen, must comply with the requirements in 40
CFR Part 261, Appendix IX, Table 1. The text below gives the rationale
and details of those requirements.
(1) Delisting Levels:
This paragraph provides the levels of constituents for which
Tokusen must test the WWTP sludge, below which these wastes would be
considered non-hazardous. EPA selected the set of inorganic and organic
constituents specified in paragraph (1) of 40 CFR Part 261, Appendix
IX, Table 1, (the exclusion language) based on information in the
petition. EPA compiled the inorganic and organic constituents list from
the composition of the waste, descriptions of Tokusen's treatment
process, previous test data provided for the waste, and the respective
health-based levels used in delisting decision-making. These delisting
levels correspond to the allowable levels measured in the TCLP
concentrations.
(2) Waste Holding and Handling:
The purpose of this paragraph is to ensure that Tokusen manages and
disposes of any WWTP sludge that contains hazardous levels of inorganic
and organic constituents according to Subtitle C of RCRA. Managing the
WWTP sludge as a hazardous waste until initial verification testing is
performed will protect against improper handling of hazardous material.
If EPA determines that the data collected under this paragraph do not
support the data provided for in the petition, the exclusion will not
cover the petitioned waste. The exclusion is effective upon publication
in the Federal Register but the disposal as non-hazardous cannot begin
until the verification sampling is completed.
(3) Verification Testing Requirements:
Tokusen must complete a rigorous verification testing program on
the WWTP sludge to assure that the sludge does not exceed the maximum
levels specified in paragraph (1) of the exclusion language. This
verification program operates on two levels. The first part of the
verification testing program consists of testing the WWTP sludge for
specified indicator parameters as per paragraph (1) of the exclusion
language. If EPA determines that the data collected under this
paragraph do not support the data provided for the petition, the
exclusion will not cover the generated wastes. If the data from the
initial verification testing program demonstrate that the leachate
meets the delisting levels, Tokusen may request quarterly testing. EPA
will notify Tokusen in writing, if and when it may replace the testing
conditions in paragraph (3)(A) with the testing conditions in (3)(B) of
the exclusion language.
The second part of the verification testing program is the
quarterly testing of representative samples of WWTP sludge for all
constituents specified in paragraph (1) of the exclusion language. EPA
believes that the concentrations of the constituents of concern in the
WWTP sludge may vary over time. Consequently this program will ensure
that the sludge is evaluated in terms of variation in constituent
concentrations in the waste over time.
The proposed subsequent testing would verify that Tokusen operates
a treatment facility where the constituent concentrations of the WWTP
sludge do not exhibit unacceptable temporal and spatial levels of toxic
constituents. EPA is proposing to require Tokusen to analyze
representative samples of the WWTP sludge quarterly during the first
year of waste generation. Tokusen would begin quarterly sampling 60
days after the final exclusion as described in paragraph (3)(B) of the
exclusion language.
EPA, per paragraph 3(C) of the exclusion language, is proposing to
end the subsequent testing conditions after
[[Page 16042]]
the first year, if Tokusen has demonstrated that the waste consistently
meets the delisting levels. To confirm that the characteristics of the
waste do not change significantly over time, Tokusen must continue to
analyze a representative sample of the waste on an annual basis. Annual
testing requires analyzing the full list of components in paragraph (1)
of the exclusion language. If operating conditions change as described
in paragraph (4) of the exclusion language; Tokusen must reinstate all
testing in paragraph (1) of the exclusion language. Tokusen must prove
through a new demonstration that their waste meets the conditions of
the exclusion. If the annual testing of the waste does not meet the
delisting requirements in paragraph (1), Tokusen must notify EPA
according to the requirements in paragraph (6) of the exclusion
language. The facility must provide sampling results that support the
rationale that the delisting exclusion should not be withdrawn.
(4) Changes in Operating Conditions:
Paragraph (4) of the exclusion language would allow Tokusen the
flexibility of modifying its processes (for example, changes in
equipment or change in operating conditions) to improve its treatment
process. However, Tokusen must prove the effectiveness of the modified
process and request approval from EPA. Tokusen must manage wastes
generated during the new process demonstration as hazardous waste until
it has obtained written approval and paragraph (3) of the exclusion
language is satisfied.
(5) Data Submittals:
To provide appropriate documentation that Tokusen's WWTP sludge is
meeting the delisting levels, Tokusen 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) of the exclusion
language including quality control information for five years.
Paragraph (5) of the exclusion language requires that Tokusen furnish
these data upon request for inspection by any employee or
representative of EPA or the State of Arkansas.
If the proposed exclusion is made final, it will apply only to
2,000 cubic yards per year of wastewater treatment sludge generated at
Tokusen after successful verification testing.
EPA would require Tokusen to file a new delisting petition under
any of the following circumstances:
(a) If it significantly alters the manufacturing process treatment
system except as described in paragraph (4) of the exclusion language;
(b) If it uses any new manufacturing or production process(es), or
significantly changes from the current process(es) described in their
petition; or
(c) If it makes any changes that could affect the composition or
type of waste generated.
Tokusen must manage waste volumes greater than 2,000 cubic yards
per year of WWTP waste as hazardous until EPA grants a new exclusion.
When this exclusion becomes final, Tokusen's management of the wastes
covered by this petition would be relieved from Subtitle C
jurisdiction, and the WWTP sludge from Tokusen will be disposed to the
RCRA Subtitle D landfill of Waste Management Industrial Subtitle D
landfill in North Little Rock, AR.
(6) Re-opener:
The purpose of paragraph (6) of the exclusion language is to
require Tokusen 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. Tokusen 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 EPA to reevaluate the
exclusion, if a source provides new or additional information to EPA.
EPA will evaluate the information on which EPA 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 EPA to deny the
petition, if presented.
This provision expressly requires Tokusen to report differing site
conditions or assumptions used in the petition in addition to failure
to meet the annual testing conditions within 10 days of discovery. If
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.
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. EPA may reopen a delisting decision when
it receives new information that calls into question the assumptions
underlying the delisting.
EPA believes a clear statement of its authority in delistings is
merited in light of EPA's experience. See Reynolds Metals Company at 62
FR 37694 and 62 FR 63458 where the delisted waste leached at greater
concentrations in the environment than the concentrations predicted
when conducting the TCLP, thus leading EPA to repeal the delisting. If
an immediate threat to human health and the environment presents
itself, EPA will continue to address these situations on a case by case
basis. Where necessary, EPA will make a good cause finding to justify
emergency rulemaking. See APA section 553 (b).
(7) Notification Requirements
In order to adequately track wastes that have been delisted, EPA is
requiring that Tokusen provide a one-time notification to any state
regulatory agency through which or to which the delisted waste is being
carried. Tokusen must provide this notification 60 days before
commencing this activity.
B. What Happens if Tokusen Violates the Terms and Conditions?
If Tokusen violates the terms and conditions established in the
exclusion, EPA will start procedures to withdraw the exclusion. Where
there is an immediate threat to human health and the environment, EPA
will evaluate the need for enforcement activities on a case-by-case
basis. EPA expects Tokusen 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?
EPA is requesting public comments on this proposed decision. Please
send three copies of your comments. Send two copies to Ben Banipal,
Section Chief of the Corrective Action and Waste Minimization Section
(6PD-C), Multimedia Planning and Permitting Division, Environmental
Protection Agency (EPA), 1445 Ross Avenue, Dallas, Texas 75202. Send a
third copy to the Hazardous Waste Division, Arkansas Department of
Environmental Quality, P.O. Box 8913, Little Rock, AR 72118. Identify
your comments at the top with this regulatory docket number: ``EPA-R06-
RCRA-2009-0549.'' You may submit your comments electronically to
Youngmoo Kim at [email protected].
You should submit requests for a hearing to Ben Banipal, Section
Chief of the Corrective Action and Waste Minimization Section (6PD-C),
Multimedia Planning and Permitting Division, U.S. Environmental
Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202.
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
[[Page 16043]]
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas,
Texas 75202. It is available for viewing in EPA Freedom of Information
Act Review Room from 9 a.m. to 4 p.m., Monday through Friday, excluding
Federal holidays. Call (214) 665-6444 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. 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 children, to calculate the maximum allowable
concentrations for this rule. 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 Subtitle D landfill. Therefore, EPA
does not believe that any populations in proximity of the landfills
used by this facility should not be adversely affected by common waste
management practices for this delisted waste.
Lists 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: March 17, 2010.
Susan Spalding,
Acting Director, Multimedia Planning and Permitting Division, Region
6.\
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 Table 1 of Appendix IX of part 261 add the following waste
stream in alphabetical order by facility to read as follows:
[[Page 16044]]
Appendix IX to Part 261--Waste Excluded Under Sec. 260.20 and 260.22
Table 1--Waste Excluded From Non-Specific Sources
--------------------------------------------------------------------------------------------------------------------------------------------------------
Facility Address Waste description
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* * * * * * *
Tokusen, USA Inc...................... Conway AR............................. Wastewater Treatment Sludge (EPA Hazardous Waste No. F006) generated at
a maximum annual rate of 2,000 cubic yards per calendar year after
[insert publication date of the final rule] will be disposed in
Subtitle D landfill.
For the exclusion to be valid, Tokusen must implement a verification
testing program that meets the following paragraphs:
(1) Delisting Levels: All leachable concentrations for those
constituents must not exceed the following levels (mg/l for TCLP). (A)
Inorganic Constituents: Antimony--0.4; Arsenic--1.59; Barium--100;
Chromium--5.0; Cobalt--0.8; Copper--91.3; Lead--2.32; Nickel--50.5;
Selenium--1.0; Zinc--748. (B) Organic Constituents: Acetone--1950.
(2) Waste Management: (A) Tokusen must manage as hazardous all WWTP
sludge generated, until it has completed initial verification testing
described in paragraph (3)(A) and (B), as appropriate, and valid
analyses show that paragraph (1) is satisfied and approval is received
by EPA. (B) Levels of constituents measured in the samples of the WWTP
sludge that do not exceed the levels set forth in paragraph (1) are non-
hazardous. Tokusen can manage and dispose of the non-hazardous WWTP
sludge according to all applicable solid waste regulations. (C) If
constituent levels in a sample exceed any of the Delisting Levels set
in paragraph (1) Tokusen can collect one additional sample and perform
expedited analyses to verify if the constituent exceeds the delisting
level. If this sample confirms the exceedance, Tokusen must, from that
point forward, treat all the waste covered by this exclusion as
hazardous until it is demonstrated that the waste again meets the
levels in paragraph (1). Tokusen must manage and dispose of the waste
generated under Subtitle C of RCRA from the time that it becomes aware
of any exceedance. (D) Upon completion of the verification testing
described in paragraph 3(A) and (B) as appropriate and the transmittal
of the results to EPA, and if the testing results meet the requirements
of paragraph (1), Tokusen may proceed to manage its WWTP sludge as non-
hazardous waste. If subsequent Verification Testing indicates an
exceedance of the Delisting Levels in paragraph (1), Tokusen must
manage the WWTP sludge as a hazardous waste after it has received
approval from EPA as described in paragraph (2)(C).
(3) Verification Testing Requirements: Tokusen must perform sample
collection and analyses, including quality control procedures, using
appropriate methods. As applicable to the method-defined parameters of
concern, analyses requiring the use of SW-846 methods incorporated by
reference in 40 CFR 260.11 must be used without substitution. As
applicable, the SW-846 methods might include Methods 8260B, 1311/8260B,
8270C, 6010B, 7470, 9034A, ASTMD-4982B, ASTMD-5049, E413.2. Methods
must meet Performance Based Measurement System Criteria in Which The
Data Quality Objectives are to demonstrate that representative samples
of sludge meet the delisting levels in paragraph (1). If EPA judges the
process to be effective under the operating conditions used during the
initial verification testing, Tokusen may replace the testing required
in paragraph (3)(A) with the testing required in paragraph (3)(B).
Tokusen must continue to test as specified in paragraph (3)(A) until
and unless notified by EPA in writing that testing in paragraph (3)(A)
may be replaced by paragraph (3)(B). (A) Initial Verification Testing:
After EPA grants the final exclusion, Tokusen must do the following:
(i) Within 60 days of this exclusion becoming final, collect eight
samples, before disposal, of the WWTP sludge. (ii) The samples are to
be analyzed and compared against the Delisting Levels in paragraph (1).
(iii) Within sixty (60) days after this exclusion becomes final,
Tokusen will report initial verification analytical test data for the
WWTP sludge, including analytical quality control information for the
first thirty (30) days of operation after this exclusion becomes final.
Tokusen must request in writing that EPA allow Tokusen to substitute
the testing conditions in (3)(B) for (3)(A). (B) Subsequent
Verification Testing: Following written notification by EPA, Tokusen
may substitute the testing conditions in (3)(B) for (3)(A). Tokusen
must continue to monitor operating conditions, and analyze two
representative samples of the wastewater treatment sludge for each
quarter of operation during the first year of waste generation. The
samples must represent the waste generated during the quarter. If
levels of constituents measured in the samples of the WWTP sludge that
do not exceed the levels set forth in paragraph (1) in two consecutive
quarters after this exclusion become effective, Tokusen can manage and
dispose of the WWTP sludge according to all applicable solid waste
regulations. After the first year of analytical sampling verification
sampling can be performed on a single annual sample of the wastewater
treatment sludge. The results are to be compared to the Delisting
Levels in paragraph (1). (C) Termination of Testing: (i) After the
first year of quarterly testing, if the Delisting Levels in paragraph
(1) are met, Tokusen may then request in writing that EPA not require
quarterly testing. (ii) Following cancellation of the quarterly
testing, Tokusen must continue to test a representative sample for all
constituents listed in paragraph (1) annually.
[[Page 16045]]
(4) Changes in Operating Conditions: If Tokusen significantly changes
the process described in its petition or starts any processes that
generate(s) the waste that may or could significantly 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 EPA in
writing; it may no longer handle the wastes generated from the new
process as non-hazardous until the wastes meet the delisting Levels set
in paragraph (1) and it has received written approval to do so from
EPA.
(5) Data Submittals: Tokusen must submit the information described
below. If Tokusen fails to submit the required data within the
specified time or maintain the required records on-site for the
specified time, EPA, at its discretion, will consider this sufficient
basis to reopen the exclusion as described in paragraph 6. Tokusen
must: (A) Submit the data obtained through paragraph(3) to the Section
Chief, Corrective Action and Waste Minimization Section, EPA Region 6,
1445 Ross Avenue, Dallas, Texas 75202-2733, Mail Code, (6PD-C) within
the time specified. (B) Compile records of operating conditions and
analytical data from paragraph (3), summarized, and maintained on-site
for a minimum of five years. (C) Furnish these records and data when
EPA or the state of Arkansas requests 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 can not 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 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 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.
(6) Re-Opener: (A) If, any time after disposal of the delisted waste,
Tokusen possesses or is otherwise made aware of any environmental data
(including but not limited to leachate data or groundwater 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 Division Director
in granting the petition, then the facility must report the data, in
writing, to the Division Director within 10 days of first possessing or
being made aware of that data. (B) If the annual testing of the waste
does not meet the delisting requirements in paragraph (1), Tokusen must
report the data in writing to the Division Director within 10 days of
first possessing or being made aware of that data. (C) If Tokusen 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 Division
Director will make a preliminary determination as to whether the
reported information requires EPA action to protect human health and/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 Division Director determines
that the reported information does require action, EPA's Division
Director will notify the facility in writing of the actions the
Division Director believes are necessary to protect human health and
the environment. The notice 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 action by EPA is not
necessary. The facility shall have 10 days from the date of the
Division Director'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 Division Director will issue a final written determination
describing EPA's actions that are necessary to protect human health and/
or the environment. Any required action described in the Division
Director's determination shall become effective immediately, unless the
Division Director provides otherwise.
(7) Notification Requirements: Tokusen must do the following before
transporting the delisted waste. Failure to provide this notification
will result in a violation of the delisting petition and a possible
revocation of the decision. (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, 60 days
before beginning such activities. (B) Update one-time written
notification, if it 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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[[Page 16046]]
[FR Doc. 2010-7037 Filed 3-30-10; 8:45 am]
BILLING CODE 6560-50-P?>