[Federal Register Volume 61, Number 80 (Wednesday, April 24, 1996)]
[Rules and Regulations]
[Pages 18088-18092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10106]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-5461-2]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Final Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA or Agency) today is
granting a petition submitted by Bethlehem Steel Corporation (``BSC''),
Lackawanna, New York, to exclude (or ``delist''), on a one-time basis,
certain solid wastes contained in a landfill from being listed
hazardous wastes. This action responds to BSC's petition to delist
these wastes on a ``generator-specific'' basis from the hazardous waste
lists. Based on careful analyses of the waste-specific information
provided by the petitioner, the Agency has concluded that BSC's
petitioned waste will not adversely affect human health and the
environment. Accordingly, this final rule excludes the petitioned waste
from the requirements of hazardous waste regulations under Subtitle C
of the Resource Conservation and Recovery Act (RCRA).
EFFECTIVE DATE: April 24, 1996.
ADDRESSES: The RCRA regulatory docket for this final rule is located at
Crystal Gateway #1, 1st Floor, 1235 Jefferson Davis Highway, Arlington,
VA, and is available for viewing from 9 a.m. to 4 p.m., Monday through
Friday, excluding Federal holidays. Call (703) 603-9230 for
appointments. The reference number for this docket is F-96-B5EF-FFFFF.
The public may copy material from any regulatory docket at no cost for
the first 100 pages, and at a cost of $0.15 per page for additional
copies.
FOR FURTHER INFORMATION, CONTACT: For general information, contact the
RCRA Hotline, toll free at (800) 424-9346, or at (703) 412-9810. For
technical information concerning this notice, contact Chichang Chen,
Waste Identification Branch, Office of Solid Waste (Mail Code 5304),
U.S. Environmental Protection Agency, 401 M Street SW., Washington, DC
20460, (202) 260-7392.
SUPPLEMENTARY INFORMATION:
I. Background
A. Authority
Under 40 CFR 260.20 and 260.22, facilities may petition the Agency
to remove their wastes from hazardous waste control by excluding them
from the lists of hazardous wastes contained in Secs. 261.31 and
261.32. Specifically, Sec. 260.20 allows any person to petition the
Administrator to modify or revoke any provision of parts 260 through
265 and 268 of Title 40 of the Code of Federal Regulations; and
Sec. 260.22 provides generators the opportunity to petition the
Administrator to exclude a waste on a ``generator-specific'' basis from
the hazardous waste lists. Petitioners must provide sufficient
information to EPA to allow the Agency to determine that the waste to
be excluded does not meet any of the
[[Page 18089]]
criteria under which the waste was listed as a hazardous waste. In
addition, the Administrator must determine, where he has a reasonable
basis to believe that factors (including additional constituents) other
than those for which the waste was listed could cause the waste to be a
hazardous waste, that such factors do not warrant retaining the waste
as a hazardous waste.
B. History of This Rulemaking
Bethlehem Steel Corporation (BSC), Lackawanna, New York, petitioned
the Agency to exclude from hazardous waste control its ammonia still
lime sludge presently listed as EPA Hazardous Waste No. K060. After
evaluating the petition, EPA proposed, on December 7, 1995, to exclude
BSC's waste from the lists of hazardous waste under Sec. 261.31 and
Sec. 261.32 (see 60 FR 62794). This rulemaking addresses public
comments received on the proposal and finalizes the proposed decision
to grant BSC's petition.
II. Disposition of Delisting Petition
Bethlehem Steel Corporation, Lackawanna, New York
A. Proposed Exclusion
Bethlehem Steel Corporation (BSC), located in Lackawanna, New York,
was engaged in primary metal-making and coke-making operations prior to
1983. BSC petitioned the Agency to exclude, on a one-time basis, the
waste contained in an on-site landfill, presently listed as EPA
Hazardous Waste No. K060--``Ammonia still lime sludge from coking
operations''. The listed constituents of concern for EPA Hazardous
Waste No. K060 are cyanide, naphthalene, phenolic compounds, and
arsenic. BSC refers to this landfill as Hazardous Waste Management Unit
No. 2 (HWM-2). Although only a portion of the waste in the landfill is
the ammonia still lime sludge, the entire volume of waste is considered
to be a listed waste in accordance with Sec. 261.3(a)(2)(iv) (i.e., the
mixture rule). The mixture of listed ammonia still lime sludge and
solid waste contained in HWM-2 is the subject of this petition.
BSC petitioned the Agency to exclude its waste because it does not
believe that the waste meets the criteria of the listing. BSC claims
that the mixture of ammonia still lime sludge and solid waste is not
hazardous because the constituents of concern, although present in the
waste, are present in either insignificant concentrations or, if
present at significant levels, are essentially in immobile forms. BSC
also believes that this waste is not hazardous for any other reason
(i.e., there are no additional constituents or factors that 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
(HSWA) of 1984. See Section 222 of HSWA, 42 U.S.C. 6921(f), and 40 CFR
260.22(d)(2)-(4).
On July 18, 1984, BSC petitioned the Agency to exclude the waste
contained in its on-site landfill identified as HWM-2, and subsequently
provided additional information. After evaluating the petition, the
Agency proposed to deny BSC's petition to exclude the waste contained
in HWM-2 on April 7, 1989 (see 54 FR 14101). The Agency's evaluation of
the petition, which used the ``VHS'' fate and transport model and the
analytical data provided by BSC, indicated that the petitioned waste
exhibited significant concentrations of leachable lead and
benzo(a)pyrene. Furthermore, the Agency considered the sampling and
analysis program conducted in support of the petition to be incomplete.
Moreover, groundwater monitoring data collected from wells monitoring
this on-site landfill indicated that the landfill might have been
adversely impacting groundwater quality at the site. On August 26,
1991, the Agency published a final denial, including responses to
public comments, in the Federal Register (see 56 FR 41944). On October
30, 1991, BSC petitioned the U.S. Court of Appeals for the District of
Columbia Circuit to overturn EPA's denial decision. Subsequently, BSC
agreed to stay this litigation for a re-evaluation by EPA using a new
fate and transport model (EPA's Composite Model for Landfills
(``EPACML'')) and updated health-based levels, and on November 17, 1992
submitted extensive supplemental waste characterization and groundwater
monitoring data. After reviewing the new data in conjunction with the
existing petition information, the Agency proposed on December 7, 1995
to withdraw its August 26, 1991 final denial decision and to grant
BSC's petition (see 60 FR 62794 for details).
In support of its petition, BSC submitted: (1) Detailed
descriptions and schematics of its manufacturing process; (2) a list of
all raw materials and Material Safety Data Sheets (MSDS) for all trade
name materials that might be expected to have contributed to the waste;
(3) results from total constituent analyses for the eight Toxicity
Characteristic (TC) metals listed in Sec. 261.24, antimony, nickel,
thallium, and cyanide; (4) results from the Toxicity Characteristic
Leaching Procedure (TCLP; SW-846, Method 1311) for the eight TC metals,
antimony, nickel, and thallium; (5) results from the EP leachate
procedure for the eight TC metals, nickel, and cyanide; (6) results
from total constituent analyses for sulfide and reactive sulfide; (7)
results from total oil and grease analyses; (8) results from
characteristics testing for ignitability, corrosivity, and reactivity;
(9) results from total constituent analyses for 70 volatile organic and
semivolatile organic constituents, including the TC organic
constituents (excluding pesticides and herbicides); (10) results from
the TCLP analyses for 63 volatile organic and semivolatile organic
constituents, including the TC organic constituents (excluding
pesticides and herbicides); and (11) ground-water monitoring data
collected from wells monitoring the on-site landfill.
B. Response to Public Comments
Comment: The Agency received public comments from one interested
party (BSC) on the December 7, 1995 proposal. The commenter expressed
its strong support for the proposed rule and urged the Agency to
finalize this rulemaking as soon as practicable. The commenter also
stated it ``does not believe that any of its comments materially affect
the Agency analyses, evaluations and conclusions in the proposed
rule.'' However, the commenter recommended a slight modification of the
proposed language for the regulatory exclusion. Specifically, the
commenter recommended that based on its legal survey of the landfill
surface acreage and resulting recalculation of the waste volume
contained in the unit, the proposed exclusion language in the Waste
Description at 40 CFR part 261, Appendix IX be modified to specify
approximately 118,000 cubic yards of waste, in lieu of 110,000 cubic
yards. The commenter contended that such an increase in waste volume
does not affect the Agency's EPACML evaluation of BSC's waste.
Some of the other comments relate to the conservative nature of the
Agency's analysis and evaluation of BSC's petition. The commenter
agreed that EPA's use of the EPACML model as described in the proposal
is an appropriate means for evaluating its petitioned waste. However,
the commenter briefly described several conservative assumptions
(pertaining to input parameter frequency distributions, infinite
steady-state contaminant source, and various subsurface attenuation
mechanisms including biodegradation of organics, metal precipitation,
non-
[[Page 18090]]
linear non-equilibrium sorption phenomena, etc.) inherent in the
EPACML, and believed that the model as proposed is more appropriate for
use as a worst-case, first-stage screening tool in a delisting
evaluation. The commenter also argued that the Agency's use of EP and
TCLP extract concentrations as inputs to the EPACML tends to overstate
the real-world leaching potential of metals from wastes that are not
reasonably likely to be co-disposed in a municipal landfill
environment. Moreover, the commenter questioned the Agency's use of the
proposed health-based levels for lead and 1,1-dichloroethane, meaning
that they may be too stringent.
Finally, the commenter presented a variety of clarifications and
corrections, primarily for the record, on miscellaneous items and
details addressed in the proposed rule. The commenter considered these
to be ``relatively minor''. The commenter also believed that any EPA
statements, comments, or interpretations pertaining to the regulatory
status of the HWM-2 landfill and BSC's compliance obligations are not
necessary.
Response: In the December 7, 1995 proposal, the Agency determined
that disposal in any Subtitle D landfill is the most reasonable, worst-
case disposal scenario for BSC's petitioned waste, that the major
exposure route of concern for any hazardous constituents would be
ingestion of contaminated groundwater, and that the EPACML fate and
transport model is appropriate for evaluating BSC's petitioned waste.
As further explained in the ``Docket Report on EPACML Evaluation of
Bethlehem Steel's Petitioned Waste'' contained in the public docket for
the proposed rule, the Agency used an EPACML dilution/attenuation
factor (DAF) of 48 to evaluate the potential for groundwater
contamination due to contaminant releases from BSC's estimated waste
volume of 110,000 cubic yards. The Agency notes here that this one-time
waste volume of 110,000 cubic yards (equivalent to annual generation of
5,500 cubic yards over 20 years) actually corresponds to an EPACML DAF
of 51. In order to account for possible variations associated with land
survey and volume calculations, the Agency in fact applied a slightly
lower, thus more stringent, DAF of 48 corresponding to one-time waste
volume of 120,000 cubic yards, or 6,000 cubic yards/year x 20 years.
Hence, increasing the petitioned volume from 110,000 cubic yards to
118,000 cubic yards (less than 120,000 cubic yards) has no adverse
effect on the results of the Agency's evaluation of the potential
impact of BSC's waste via groundwater route of exposure.
The small volume increase of 8,000 cubic yards (constituting only
7.3% of 110,000 cubic yards) does not adversely affect the Agency's air
and surface water evaluations either, for the following reasons. As
discussed in the proposed rule, the Agency's evaluation of the
potential hazards resulting from air and surface water routes of
exposure to BSC's petitioned waste quantity of 110,000 cubic yards were
very conservative. Furthermore, the calculated airborne and surface
water release concentrations at the assumed downgradient receptors were
well below (more than 10 times and 29 times lower, respectively) the
applicable air emissions levels of concern and water quality criteria
for consumption of water and organisms used for the evaluation of BSC's
waste (see docket for the proposed rule). Therefore, calculations based
on 118,000 cubic yards (as compared to 110,000 cubic yards) would
result in an insignificant change in air and surface water releases.
Consequently, the Agency is finalizing the exclusion language in 40
CFR part 261, Appendix IX, Table 2 to delist 118,000 cubic yards of the
petitioned waste as the commenter (i.e., BSC) recommended. The Agency
believes this revised volume more accurately reflects the actual waste
quantity contained in the petitioned HWM-2 landfill. The other issues
raised by the commenter with respect to the conservative nature of the
Agency's analysis and evaluation of BSC's petition as well as the
commenter's clarifications and corrections for the record do not affect
EPA's decision to grant this petition; therefore, the Agency is not
addressing those comments in today's rule. The Agency would like to
refer the readers to relevant Agency responses to some similar comments
provided in previous delisting rulemakings, e.g., 56 FR 67197, December
30, 1991; 58 FR 40067, July 27, 1993; 60 FR 31107, June 13, 1995.
E. Final Agency Decision
For the reasons stated in both the proposal and this final rule,
the Agency believes that BSC's petitioned waste should be excluded from
hazardous waste control. The Agency, therefore, is granting a final
exclusion to Bethlehem Steel Corporation, Lackawanna, New York, for its
ammonia still lime sludge and other co-disposed solid wastes contained
in the on-site landfill referred to as HWM-2, described in the petition
as EPA Hazardous Waste No. K060. This one-time exclusion applies to
118,000 cubic yards of waste covered by BSC's delisting demonstration.
Although management of the waste covered by this petition is
relieved from Subtitle C jurisdiction by this final exclusion, the
generator of the delisted waste must either treat, store, or dispose of
the waste in an on-site facility, or ensure that the waste is delivered
to an off-site storage, treatment, or disposal facility, either of
which is permitted, licensed, or registered by a State to manage
municipal or industrial solid waste. Alternatively, the delisted waste
may be delivered to a facility that beneficially uses or reuses, or
legitimately recycles or reclaims the waste, or treats the waste prior
to such beneficial use, reuse, recycling, or reclamation (see 40 CFR
part 260, Appendix I).
III. Limited Effect of Federal Exclusion
The final exclusion being granted today is issued under the Federal
(RCRA) delisting program. States, however, are allowed to impose their
own, non-RCRA regulatory requirements that are more stringent than
EPA's, pursuant to section 3009 of RCRA. These more stringent
requirements may include a provision which prohibits a Federally-issued
exclusion from taking effect in the States. Because a petitioner's
waste may be regulated under a dual system (i.e., both Federal (RCRA)
and State (non-RCRA) programs), petitioners are urged to contact State
regulatory authorities to determine the current status of their wastes
under the State laws.
Furthermore, some States are authorized to administer a delisting
program in lieu of the Federal program, i.e., to make their own
delisting decisions. Therefore, this exclusion does not apply in those
authorized States. If the petitioned waste will be transported to and
managed in any State with delisting authorization, BSC must obtain
delisting authorization from that State before the waste may be managed
as nonhazardous in that State.
IV. Effective Date
This rule is effective on April 24, 1996. The Hazardous and Solid
Waste Amendments of 1984 amended Section 3010 of RCRA to allow rules to
become effective in less than six months when the regulated community
does not need the six-month period to come into compliance. That is the
case here, because this rule reduces the existing requirements for
persons generating hazardous wastes. In light of the unnecessary
hardship and expense that would be imposed on this petitioner by an
effective date six months after
[[Page 18091]]
publication and the fact that a six-month deadline is not necessary to
achieve the purpose of Section 3010, EPA believes that this exclusion
should be effective immediately upon final publication. These reasons
also provide a basis for making this rule effective immediately, upon
final publication, under the Administrative Procedure Act, pursuant to
5 USC Sec. 553(d).
V. Regulatory Impact
Under Executive Order 12866, EPA must conduct an ``assessment of
the potential costs and benefits'' for all ``significant'' regulatory
actions. The effect of this rule is to reduce the overall costs and
economic impact of EPA's hazardous waste management regulations. The
reduction is achieved by excluding waste from EPA's lists of hazardous
wastes, thereby enabling the facility to treat its waste as non-
hazardous. This rule does not represent a significant regulatory action
under the Executive Order, and no assessment of costs and benefits is
necessary. The Office of Management and Budget (OMB) has also exempted
this rule from the requirement for OMB review under Section (6) of
Executive Order 12866.
VI. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612,
whenever an agency is required to publish a general notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the impact of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
No regulatory flexibility analysis is required, however, if the
Administrator or delegated representative certifies that the rule will
not have a significant economic impact on a substantial number of small
entities.
This rule will not have an adverse economic impact on any small
entities since its effect will be to reduce the overall costs of EPA's
hazardous waste regulations and will be limited to one facility.
Accordingly, I hereby certify that this regulation will not have a
significant economic impact on a substantial number of small entities.
This regulation, therefore, does not require a regulatory flexibility
analysis.
VII. Paperwork Reduction Act
Information collection and record-keeping requirements associated
with this final rule have been approved by the Office of Management and
Budget (OMB) under the provisions of the Paperwork Reduction Act of
1980 (Pub. L. 96-511, 44 U.S.C. 3501 et seq.) and have been assigned
OMB Control Number 2050-0053.
VIII. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``UMRA''), Pub. L. 104-4, which was signed into law on March 22, 1995,
EPA generally must prepare a written statement for rules with Federal
mandates that may result in estimated costs to State, local, and tribal
governments in the aggregate, or to the private sector, of $100 million
or more in any one year. When such a statement is required for EPA
rules, under section 205 of the UMRA EPA must identify and consider
alternatives, including the least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule. EPA
must select that alternative, unless the Administrator explains in the
final rule why it was not selected or it is inconsistent with law.
Before EPA establishes regulatory requirements that may significantly
or uniquely affect small governments, including tribal governments, it
must develop under section 203 of the UMRA a small government agency
plan. The plan must provide for notifying potentially affected small
governments, giving them meaningful and timely input in the development
of EPA regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising them on compliance
with the regulatory requirements.
The UMRA generally defines a Federal mandate for regulatory
purposes as one that imposes an enforceable duty upon State, local, or
tribal governments or the private sector. EPA finds that today's
delisting decision is deregulatory in nature and does not impose any
enforceable duty on any State, local, or tribal governments or the
private sector. In addition, today's delisting decision does not
establish any regulatory requirements for small governments and so does
not require a small government agency plan under UMRA section 203.
List of Subjects in 40 CFR Part 261
Hazardous waste, Recycling, Reporting and recordkeeping
requirements.
Dated: April 4, 1996.
James R. Berlow,
Acting Director, Office of Solid Waste.
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 2 of Appendix IX, Part 261 add the following
wastestream in alphabetical order by facility to read as follows:
Appendix IX--Wastes Excluded Under Secs. 260.20 and 260.22
Table 2. Wastes Excluded From Specific Sources
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Facility Address Waste description
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* * * * *
Bethlehem Steel Corporation... Lackawanna, New Ammonia still lime
York. sludge (EPA
Hazardous Waste No.
K060) and other
solid waste
generated from
primary metal-making
and coking
operations. This is
a one-time exclusion
for 118,000 cubic
yards of waste
contained in the on-
site landfill
referred to as HWM-
2. This exclusion
was published on
April 24, 1996.
* * * * *
* *
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[FR Doc. 96-10106 Filed 4-23-96; 8:45 am]
BILLING CODE 6560-50-P
