E7-1618. Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Final Exclusion

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (also, “EPA” or “the Agency” or “we”) in this preamble is granting a petition submitted by General Electric (GE), King of Prussia, Pennsylvania, to exclude (or delist), on a one-time basis, certain solid wastes that have been deposited and/or accumulated in two on-site drying beds and two on-site basins at GE's RCA del Caribe facility in Barceloneta, Puerto Rico from the lists of hazardous wastes contained in the regulations. These drying beds and basins were used exclusively for disposal of its chemical etching wastewater treatment plant (WWTP) sludge.

This action is specific to the RCA del Caribe site, bears no precedential effect on other delistings and conditionally excludes the petitioned waste from the list of hazardous wastes only if the waste is disposed of in a Subtitle D landfill which is permitted, licensed, or registered by a State or Commonwealth to manage industrial solid waste. The exclusion was proposed on March 19, 2004.

DATES:

Effective Date: February 1, 2007.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R02-RCRA-2006-0804. All documents in the docket are listed on the www.regulations.gov Web site. 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, 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 www.regulations.gov or in hard copy at the RCRA Programs Branch, Division of Environmental Planning and Protection, U.S. Environmental Protection Agency, Region 2, 290 Broadway, New York, New York 10007-1866, and are available for viewing from 8 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. Call Ernst J. Jabouin at [phone] for appointments. The public may copy material from the regulatory docket at $0.15 per page.

FOR FURTHER INFORMATION CONTACT:

For general and technical information about this final rule, contact Ernst Jabouin, RCRA Program Branch (2DEPP-RPB), U.S. Environmental Protection Agency, Region 2, 290 Broadway, New York, New York 10007-1866 or call [phone].

SUPPLEMENTARY INFORMATION:

The information in this section is organized as follows:

I. Background

A. What Is a Delisting Petition, and What Does It Require of Petitioner?

B. What Regulations Allow a Waste To Be Delisted?

II. GE's Delisting Petition

A. What Wastes Did GE Petition the EPA To Delist?

B. What Information Must the Generator Supply?

C. What Information Did GE Submit To Support This Petition?

III. Public Comments Received on the Proposed Exclusion

A. Who Submitted Comments on the Proposed Rule

B. Comments Received and Responses From EPA

IV. EPA's Evaluation and Final Rule

A. What Decision Is EPA Finalizing and Why?

B. What Are the Terms of This Exclusion?

C. When Is the Delisting Effective?

D. How Does This Action Affect the States?

V. Statutory and Executive Order Reviews

I. Background

A. What Is a Delisting Petition, and What Does It Require of a Petitioner?

A delisting petition is a request from a facility to the EPA or an authorized State to exclude wastes from the list of hazardous wastes. The facility petitions the EPA because it does not consider the wastes hazardous under RCRA regulations.

In a delisting petition, the petitioner must show that wastes generated at a particular facility do not meet any of the criteria for which the waste was listed. The criteria for which the EPA lists a waste are in part 261 and further explained in the background documents for the listed waste.

In addition, under 40 CFR 260.22, a petitioner must prove that the waste does not exhibit any of the hazardous waste characteristics (ignitability, reactivity, corrosivity, and toxicity) and present sufficient information for the EPA to decide whether factors other than those for which the waste was listed warrant retaining it as a hazardous waste. (See part 261 and the background documents for the listed waste.)

Generators remain obligated under RCRA to confirm whether their waste remains nonhazardous based on the hazardous waste characteristics even if the EPA has “delisted” the waste.

B. What Regulations Allow a Waste To Be Delisted?

Under 40 CFR 260.20 and 260.22, a generator may petition the EPA to remove its waste from hazardous waste control by excluding it 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 Title 40 of the Code of Federal Regulations. 40 CFR 260.22 provides a generator the opportunity to petition the Administrator to exclude a waste on a “generator specific” basis from the hazardous waste lists.

II. GE's Delisting Petition

A. What Wastes Did GE Petition the EPA To Delist?

On November 20, 1997, GE petitioned EPA Region 2 to exclude an estimated volume of hazardous wastes ranging from 5,000 to 15,000 cubic yards from the list of hazardous wastes contained in 40 CFR 261.31. These wastes were generated and disposed of at GE's facility in Barceloneta, PR, formerly known as the RCA del Caribe facility. This facility was on EPA's National Priority List and was the subject of a Superfund Remedial Investigation, Feasibility Study and Record of Decision. The wastes are described in GE's petition as EPA Hazardous Waste Number F006 wastewater treatment sludge that was generated from chemical etching operation and accumulated in two drying beds and two basins where the sludge mixed with soil. F006 is defined as “Wastewater treatment sludges from electroplating operations except from the following processes: (1) Sulfuric acid anodizing of aluminum; (2) tin plating on carbon steel; (3) zinc plating (segregated basis) on carbon steel; (4) aluminum or zinc-aluminum steel; (5) cleaning/stripping associated with tin, zinc and aluminum plating on carbon steel; and (6) chemical etching and milling of aluminum.” The constituents of concern for which F006 is listed are cadmium, hexavalent chromium, nickel and complexed cyanide.

B. What Information Must the Generator Supply?

A generator must provide sufficient information to allow the EPA to determine that the waste does not meet any of the criteria for which it was listed as a hazardous waste. In addition, where there is a reasonable basis to believe that factors other than those for which the waste was listed (including additional constituents) could cause the waste to be hazardous, the Administrator must determine that such factors do not warrant retaining the waste as hazardous.

C. What Information Did GE Submit To Support This Petition?

To support its petition, GE submitted (1) Descriptions and schematic diagrams of its manufacturing and wastewater treatment processes, including historical information on past waste generation and management practices; (2) detailed chemical and physical analysis of the sludge; and (3) environmental monitoring data from past and recent studies of the facility, including groundwater data from wells located around the two drying beds and two basins. GE also submitted a signed certification of accuracy and responsibility statement set forth in 40 CFR 260.22(i)(12). By this certification, GE attests that all submitted information is true, accurate and complete.

III. Public Comments Received on the Proposed Exclusion

A. Who Submitted Comments on the Proposed Rule

The EPA received public comments on the proposed notice published on March 19, 2004 from General Electric Company, King of Prussia, PA (GE), the petitioner, and by postcard from an individual in New Jersey.

B. Comments Received and Responses From EPA

Comment: GE stated that the in-place verification sampling for the petitioned waste should not be required since: (1) GE met the criteria for waste characterization with prior sampling and EPA approved the delisting based on the prior sampling; (2) GE filed a signed certification of accuracy and responsibility statement pursuant to 40 CFR 260.22(i)(12); (3) conditions at the facility did not change in a manner that would suggest that the petitioned waste's characteristics have changed since the prior sampling was conducted; (4) the sampling EPA included in the proposed rule was nearly identical to the sampling that GE had already conducted, and which EPA previously approved as a representative sampling protocol for the petitioned waste, and (5) EPA correspondence and guidance did not support the need for the verification sampling that was listed in the proposed rule.

Response: EPA agrees that, as a “one-time” standard exclusion, the previous waste characterization is sufficient and that no in-place verification sampling needs to be performed. Under a closure plan, EPA has required post-excavation sampling by GE to show that the sludge and sludge mixed with soil have been removed and there is no waste remaining in the units at the facility.

Comment: GE stated that the Final Rule should be based upon a cumulative risk analysis, and specific delisting levels for individual constituents should not be included in the Final Rule.

Response: EPA believes it is not necessary to address this comment since GE's wastes passed both cumulative risk analysis and specific delisting levels for individual constituents. EPA also agrees that, for a “one-time” standard exclusion, the Agency does not need to report delisting levels in the final rule.

Comment: GE stated that EPA should reevaluate the individual delisting levels for arsenic for three reasons: (1) Arsenic was not used in the manufacturing process and should be regarded as a background constituent that is not subject to regulation; (2) EPA has considered the presence of naturally occurring arsenic and has acknowledged that delisting levels for arsenic should be calculated based on the point-of-exposure (POE) concentration allowed by the Maximum Concentration Limit (MCL); and (3) since the individual delisting levels are directly related to the amount of waste being delisted, EPA inappropriately used the total amount of waste (15,000 cu. yards) in the Delisting Risk Assessment Software (DRAS) to calculate the individual delisting level for arsenic, rather than the amount of waste petitioned to be delisted from the basins only. As arsenic found in the drying beds and basins is likely due to the inadvertent mixing of native soil with the sludge, EPA should have excluded the volume of material outside the drying beds and basins entirely.

Response: GE's wastes passed the arsenic level identified as the delisting level in the proposed rule. As a result, EPA believes it is not necessary to address these comments.

Comment: The proposed rule inappropriately included a statement that the “exclusion does not change the regulatory status of the drying beds and on-site basins at the facility in Barceloneta, Puerto Rico where the waste has been disposed.” This statement is unnecessary as it is immaterial to the Rule being proposed, namely whether the petitioned waste should be excluded. GE has previously corresponded with EPA regarding the regulatory status of the drying beds and basins, and expects that EPA will address that issue in a separate context. Since the comment is immaterial to the Proposed Rule, it should be removed from the Final Rule.

Response: EPA is not including this statement in the final rule as its inclusion is not critical in the particular circumstances of this site. GE has submitted a plan entitled “Clean Closure Plan for Waste Units—Former RCA Del Caribe Facility” (the “Plan”), which EPA believes will achieve clean closure of the units.

Comment: EPA must do independent tests. GE polluted the Hudson River horribly so to rely on this company's representation on what is hazardous and what is not seems ludicrous. They have polluted before! GE prefers to spend its money on Jack Welch not being careful on the earth! The testing listed seems far too little to be acceptable. Page 5 details what the waste is NOT FROM rather than focusing on where the waste is FROM! Public is NOT being told exactly what origin/processes are involved. Is this withholding of information deliberate? Chromium is extremely TOXIC! I recommend holding GE to much stricter standards.

Response: The waste is F006 wastewater treatment sludge that was generated from chemical etching operation. The tests of the waste conducted by GE have been independently validated by independent validators. Also, as stated above in paragraph II.C., GE has signed a certification of accuracy and responsibility statement set forth in 40 CFR 260.22(i)(12). By this certification, GE attests that all submitted information is true, accurate and complete. GE analyzed the wastes and groundwater for arsenic, barium, cadmium, chromium, hexavalent chromium, lead, mercury, nickel, selenium, and silver; for Appendix IX Volatile Organic Compounds (VOCs); and, for Appendix IX Semi-Volatile Organic Compounds (SVOCs). Characteristic testing of soil and sludge samples also included analysis of ignitability and corrosivity. EPA believes appropriate standards have been satisfied.

IV. EPA's Evaluation and Final Rule

A. What Decision Is EPA Finalizing and Why?

Today the EPA is finalizing an exclusion for an estimated volume ranging from 5,000 to 15,000 cubic yards of WWTP sludge resulting from the chemical etching operation at its facility in RCA del Caribe in Barceloneta, Puerto Rico.

GE petitioned EPA to exclude, or delist, the WWTP sludge because GE believes 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 section 222 of HSWA, 42 United States Code (U.S.C.) 6921(f), and 40 CFR 260.22.

On March 19, 2004, EPA proposed to exclude or delist GE's WWTP sludge resulting from the chemical etching operation from the list of hazardous wastes in 40 CFR 261.31 and accepted public comment on the proposed rule (69 FR 12995). EPA considered all comments received, and we believe that this waste should be excluded from hazardous waste control.

B. What Are the Terms of This Exclusion?

GE must dispose of the WWTP sludge resulting from the chemical etching operation at its facility in Barceloneta, PR, formerly known as the RCA del Caribe facility, in a Subtitle D landfill which is permitted, licensed, or registered by a State or Commonwealth to manage industrial waste. Any amount of WWTP sludge which is in excess of 15,000 cubic yards is not considered delisted under this exclusion. This exclusion is effective only if all conditions contained in today's rule are satisfied.

C. When Is the Delisting Effective?

This rule is effective February 1, 2007. 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).

D. How Does This Action Affect the States or the Commonwealth?

Because EPA is issuing today's exclusion under the Federal RCRA delisting program, only States or Commonwealth subject to Federal RCRA delisting provisions would be affected. This would exclude States or Commonwealth who have received authorization from the EPA to make their own delisting decisions.

EPA allows the States or the Commonwealth of Puerto Rico to impose their own non-RCRA regulatory requirements that are more stringent than the EPA's, under section 3009 of RCRA, 42 U.S.C. 6929. These more stringent requirements may include a provision that prohibits a Federally issued exclusion from taking effect in the State or Commonwealth. Because a dual system (that is, both Federal (RCRA) and State or Commonwealth (non-RCRA) programs) may regulate a petitioner's waste, the EPA urges petitioner to contact the pertinent State or the Commonwealth regulatory authority to establish the status of its wastes under the State or Commonwealth law.

EPA has also authorized some States to administer a delisting program in place of the federal program to make State delisting decisions. Therefore, this exclusion does not apply in those authorized States. If GE transports the petitioned waste to or manages the waste in any State with delisting authorization, GE must obtain a delisting from that State before it can manage the waste as nonhazardous in the State. Delisting petitions approved by the EPA Administrator under 40 CFR 260.22 are effective only after the final rule has been published in the Federal Register.

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 the DRAS program, which considers health and safety risks to infants and 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
• Reporting and recordkeeping requirements

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

Dated: January 26, 2007.

Walter Mugdan,

Director, Division of Environmental Planning and Protection, Region 2.

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.

40 CFR Part 261, Appendix IX

2. Table 1 of appendix IX of part 261 is amended by adding the following entry in alphabetical order by facility to read as follows:

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

Table 1.—Waste Excluded From Non-Specific Sources

Facility	Address	Waste description
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GE's Former RCA del Caribe	Barceloneta, PR	Wastewater treatment plant (WWTP) sludges from chemical etching operation (EPA Hazardous Waste No. F006) and contaminated soil mixed with sludge. This is a one-time exclusion for a range of 5,000 to 15,000 cubic yards of WWTP sludge on condition of disposal in a Subtitle D landfill. This exclusion was published on February 1, 2007. 1. Reopener Language—(a) If, anytime after disposal of the delisted waste, GE 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 GE must report any information relevant to that condition or assumption, in writing, to the Director of the Division of Environmental Planning and Protection in Region 2 within 10 days of first of discovering that information. (b) Upon receiving information described in paragraph (a) of this section, regardless of its source, the Director 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. Notifications—GE must provide a one-time written notification to any State or Commonwealth Regulatory Agency in any State or Commonwealth to which or through which the waste described above will be transported for disposal at least 60 days prior to the commencement of such activities. Failure to provide such a notification will result in a violation of the waste exclusion and a possible revocation of the decision.
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