2011-1768. Hazardous Waste Management System; Identifying and Listing Hazardous Waste Exclusion

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA (also, “the Agency” or “we” in this preamble) is granting a petition submitted by Owosso Graphic Arts Inc. (OGAI), in Owosso, Michigan to exclude (or “delist”) up to 244 cubic yards of wastewater treatment sludge per year from the list of hazardous wastes.

The Agency has decided to grant the petition based on an evaluation of waste-specific information provided by OGAI and a consideration of public comments received. This action conditionally excludes the petitioned waste from the requirements of hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA) when disposed of in a Subtitle D landfill permitted, licensed, or registered by a State to manage industrial solid waste. The rule also imposes testing conditions for waste generated in the future to ensure that this waste continues to qualify for delisting.

DATES:

This final rule is effective on January 27, 2011.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. [EPA-R05-RCRA-2010-0843]. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the Records Center, 7th floor, U.S. EPA Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. We recommend you telephone Christopher Lambesis at [phone] before visiting the Region 5 office. The public may copy material from the regulatory docket at 15 cents per page.

FOR FURTHER INFORMATION CONTACT:

Christopher Lambesis, Land and Chemicals Division, (Mail Code: LR-8J), EPA Region 5, 77 West Jackson Boulevard, Chicago, IL 60604; telephone number: [phone]; fax number: [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

The information in this section is organized as follows:

I. Background

A. What is a delisting petition?

B. What regulations allow a waste to be delisted?

II. OGAI's Petition

A. What waste did OGAI petition to delist?

B. What information was submitted in support of this petition?

III. EPA's Evaluation and Public Comments

A. What decision is EPA finalizing and why?

B. Public Comments Received and EPA's Response

IV. Final Rule

A. What are the terms of this exclusion?

B. When is the delisting effective?

C. How does this action affect the States?

V. Statutory and Executive Order Reviews

I. Background

A. What is a delisting petition?

A delisting petition is a request from a generator to exclude waste from the list of hazardous wastes 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 EPA listed the waste as set forth in 40 CFR 261.11 and the background document for the waste. In addition, a petitioner must demonstrate that the waste does not exhibit any of the hazardous waste characteristics (that is, ignitability, reactivity, corrosivity, and toxicity) and must present sufficient information for us to decide whether factors other than those for which the waste was listed warrant retaining it as a hazardous waste. See 40 CFR 260.22, 42 United States Code (U.S.C.) 6921(f) and the background documents for a listed waste.

A generator remains obligated under RCRA to confirm that its waste remains nonhazardous based on the hazardous waste characteristics even if EPA has “delisted” the wastes and to ensure that future generated wastes meet the conditions set.

B. What regulations allow a waste to be delisted?

Under 40 CFR 260.20, 260.22, and 42 U.S.C. 6921(f), facilities may petition the EPA to remove their wastes from hazardous waste control by excluding them from the lists of hazardous wastes contained in 40 CFR 261.31 and 261.32. Specifically, 40 CFR 260.20 allows any person to petition the Administrator to modify or revoke any provision of parts 260 through 266, 268, and 273 of 40 CFR. 40 CFR 260.22 provides a generator the opportunity to petition the Administrator to exclude a waste from the lists of hazardous wastes on a “generator specific” basis.

II. OGAI's Petition

A. What waste did OGAI petition EPA to delist?

In May 2005, OGAI petitioned EPA to exclude an annual volume of 244 cubic yards of F006 wastewater treatment sludges generated at its facility located in Owosso, Michigan from the list of hazardous wastes contained in 40 CFR 261.31. OGAI generates this wastewater treatment sludge from spent solutions that were used for chemical etching of magnesium plates and claims that it does not meet the criteria for which F006 was listed (i.e., cadmium, hexavalent chromium, nickel and complexed cyanide) and that there are no other factors which would cause the waste to be hazardous.

B. What information was submitted in support of this petition?

OGAI submitted detailed descriptions of the process generating the waste including Material Safety Data Sheets (MSDSs) and other information regarding the makeup of materials contributing to the sludge. OGAI also asserted that its waste does not meet the criteria for which F006 waste was listed and there are no other factors that might cause the waste to be hazardous.

To support its assertion that the waste is not hazardous, OGAI collected numerous samples of the waste for analysis. Sample collection and chemical analysis were conducted in accordance with a pre-approved sampling plan. The data was validated and any deviations from the sampling plan were reviewed and documented. The data was assessed for its intended use and, in some instances, additional samples were collected or analysis performed to confirm the data were of sufficient quality.

III. EPA's Evaluation and Public Comments

A. What decision is EPA finalizing and why?

Today the EPA is finalizing an exclusion for up to 244 cubic yards of wastewater treatment sludge generated annually at the OGAI facility in Owosso, Michigan. OGAI petitioned EPA to exclude, or delist, the wastewater treatment sludge because OGAI believed that the petitioned waste does not meet the criteria for which it was listed and that there are no additional constituents or factors which could cause the waste to be hazardous. Review of this petition included consideration of the original listing criteria, as well as the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See § 222 of HSWA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(2)-(4).

On November 4, 2010, EPA proposed to exclude or delist the wastewater treatment sludge generated at OGAI's facility from the list of hazardous wastes in 40 CFR 261.31 and accepted public comment on the proposed rule (75 FR 67919). EPA considered all comments received, and for reasons stated in both the proposal and this document, we believe that the wastewater treatment sludge from OGAI's facility should be excluded from hazardous waste control.

B. Public Comments Received and EPA's Response

EPA received one public comment expressing concern over temporal variability of the waste and the potential for data manipulation. In response, we believe OGAI and EPA adequately addressed these concerns in the preparation of the petition. OGAI sampled the waste 15 different times over a span of almost six years. All samples were collected in accordance with an EPA-approved sampling plan or under specific approval of Agency scientists. EPA and OGAI responded to two changes in process chemicals with additional rounds of sampling and all data were scrutinized for adequacy by independent validation. Several issues with quality assurance were documented and corrective measures implemented.

Conservative assumptions were applied to the data before use to ensure the safety of the waste such as: assuming that all chromium present was comprised of hexavalent chromium (the most toxic form); assuming 100% of a hazardous constituent present in the waste leached into the hypothetical landfill; and including conservative quantitation of tentatively identified compounds in analysis by mass spectoscopy. EPA representatives also visited the facility to review the waste generating process. Furthermore, OGAI remains obligated to periodically sample the waste and report changes to the process (see below).

IV. Final Rule

A. What are the terms of this exclusion?

OGAI must dispose of this waste in a Subtitle D landfill permitted or licensed by a state, and will remain obligated to verify that the waste meets the allowable concentrations set forth here. OGAI must also continue to determine whether the waste is identified in subpart C of 40 CFR pursuant to § 261.11(c). This exclusion applies only to a maximum annual volume of 244 cubic yards and is effective only if all conditions contained in this rule are satisfied.

B. When is the delisting effective?

This rule is effective January 27, 2011. 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. This rule reduces rather than increases the existing requirements and, therefore, is effective immediately upon publication under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).

C. How does this action affect the States?

Today's exclusion is being issued under the federal RCRA delisting program. Therefore, only states subject to federal RCRA delisting provisions would be affected. This exclusion is not effective in states that have received authorization to make their own delisting decisions. Also, the exclusion may not be effective in states having a dual system that includes federal RCRA requirements and their own requirements. EPA allows states to impose their own regulatory requirements that are more stringent than EPA's, under section 3009 of RCRA. 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, we urge petitioners to contact the state regulatory authority to establish the status of their wastes under the state law. If a participating facility transports the petitioned waste to or manages the waste in any state with delisting authorization, it must obtain a delisting from that state before it can manage the waste as nonhazardous in the state.

V. 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 final 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 final 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 DRAS, 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 today's action under section 801 because this is a rule of particular applicability.

List of Subjects in 40 CFR Part 261

• Environmental protection
• Hazardous waste
• Recycling, and Reporting and recordkeeping requirements

Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).

Dated: January 19, 2011.

Bruce F. Sypniewski,

Acting Director, Land and Chemicals Division.

For the reasons set out in the preamble, 40 CFR part 261 is 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 the following waste stream is added in alphabetical order by facility to read as follows:

Appendix IX to Part 261—Wastes Excluded Under §§ 260.20 and 260.22

Table 1—Wastes Excluded From Non-Specific Sources

Facility	Address	Waste description
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Owosso Graphic Arts Inc.	Owosso, Michigan	Wastewater treatment sludges, F006, generated at Owosso Graphic Arts, Inc. (OGAI) facility in Owosso, Michigan, at a maximum annual rate of 244 cubic yards per year. The sludge must be disposed of in a Subtitle D landfill licensed, permitted, or otherwise authorized by a state to accept the delisted wastewater treatment sludge. The exclusion becomes effective as of January 27, 2011.
		1. Delisting Levels: (A) The constituent concentrations measured in a leachate extract may not exceed the following concentrations (mg/L): antimony—3.15; arsenic—0.25; cadmium—1; chromium—5; lead—5; and zinc—6,000. (B) Maximum allowable groundwater concentrations (mg/L) are as follows: antimony—0.006; arsenic—0.0005; cadmium—0.005; chromium—0.1; lead—0.015; and zinc—11.3.
		2. Annual Verification Testing: To verify that the waste does not exceed the specified delisting concentrations, OGAI must collect and analyze one waste sample on an annual basis using methods with appropriate detection concentrations and elements of quality control. SW-846 Method 1311 must be used for generation of the leachate extract used in the testing of the delisting levels if oil and grease comprise less than 1 percent of the waste. SW-846 Method 1330A must be used for generation of the leaching extract if oil and grease comprise 1 percent or more of the waste. SW-846 Method 9071B must be used for determination of oil and grease. SW-846 Methods 1311, 1330A, and 9071B are incorporated by reference in 40 CFR 260.11. A total analysis of the waste (accounting for any filterable liquids and the dilution factor inherent in the TCLP method) may be used to estimate the TCLP concentration as provided for in section 1.2 of Method 1311.
		3. Changes in Operating Conditions: OGAI must notify the EPA in writing if the manufacturing process, the chemicals used in the manufacturing process, the treatment process, or the chemicals used in the treatment process significantly change. OGAI must handle wastes generated after the process change as hazardous until it has: demonstrated that the wastes continue to meet the delisting concentrations in section 1; demonstrated that no new hazardous constituents listed in appendix VIII of part 261 have been introduced; and it has received written approval from EPA.
		4. Data Submittals: OGAI must submit the data obtained through verification testing or as required by other conditions of this rule to U.S. EPA Region 5, RCRA Delisting Program (LR-8J), 77 West Jackson Boulevard, Chicago, IL 60604. The annual verification data and certification of proper disposal must be submitted upon the anniversary of the effective date of this exclusion. OGAI must compile, summarize, and maintain on site for a minimum of five years records of operating conditions and analytical data. OGAI must make these records available for inspection. All data must be accompanied by a signed copy of the certification statement in 40 CFR 260.22(i)(12).
		5. Reopener Language—(A) If, anytime after disposal of the delisted waste, OGAI possesses or is otherwise made aware of any data (including but not limited to leachate data or groundwater monitoring data) relevant to the delisted waste indicating that any constituent is at a concentration in the leachate higher than the specified delisting concentration, or is in the groundwater at a concentration higher than the maximum allowable groundwater concentration in paragraph (1), then OGAI must report such data, in writing, to the Regional Administrator within 10 days of first possessing or being made aware of that data. (B) Based on the information described in paragraph (A) and any other information received from any source, the Regional Administrator will make a preliminary determination as to whether the reported information requires Agency action to protect human health or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate response necessary to protect human health and the environment. (C) If the Regional Administrator determines that the reported information does require Agency action, the Regional Administrator will notify OGAI in writing of the actions the Regional Administrator believes are necessary to protect human health and the environment. The notice shall include a statement of the proposed action and a statement providing OGAI with an opportunity to present information as to why the proposed Agency action is not necessary or to suggest an alternative action. OGAI shall have 30 days from the date of the Regional Administrator's notice to present the information. (D) If after 30 days OGAI presents no further information or after a review of any submitted information, the Regional Administrator will issue a final written determination describing the Agency actions that are necessary to protect human health or the environment. Any required action described in the Regional Administrator's determination shall become effective immediately, unless the Regional Administrator provides otherwise.
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