[Federal Register Volume 60, Number 113 (Tuesday, June 13, 1995)]
[Rules and Regulations]
[Pages 31107-31115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14338]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-5219-5]
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 Conversion Systems, Inc. (``CSI'') to
exclude from hazardous waste control (or ``delist'') certain solid
wastes. The wastes being delisted consist of electric arc furnace dust
(``EAFD'') that has been treated by a specific chemical stabilization
process. This action responds to CSI's petition to delist these treated
wastes on a ``generator-specific'' basis from the hazardous waste
lists. After careful analysis, the Agency has concluded that the
petitioned waste is not hazardous waste when disposed of in Subtitle D
landfills. This exclusion applies to chemically stabilized EAFD
generated at CSI's Sterling, Illinois facility as well as to similar
wastes that CSI may generate at future facilities. Accordingly, this
final rule excludes the petitioned waste from the requirements of
hazardous waste regulations under the Resource Conservation and
Recovery Act (RCRA) when disposed of in Subtitle D landfills, but
imposes testing conditions to ensure that the future-generated waste
remains qualified for delisting.
EFFECTIVE DATE: June 13, 1995.
[[Page 31108]] ADDRESSES: The public docket for this final rule is
located at the U.S. Environmental Protection Agency, 401 M Street, SW,
Washington, DC 20460, and is available for viewing [Room M2616] from 9
a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. Call
(202) 260-9327 for appointments. The reference number for this docket
is ``F-95-CSEF-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,
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 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
Conversion Systems, Inc., (CSI), Horsham, Pennsylvania, petitioned
the Agency to exclude from hazardous waste control its stabilized waste
generated at electric arc furnace dust (EAFD) treatment facilities
across the nation. After evaluating the petition, EPA proposed, on
November 2, 1993 to exclude CSI's waste from the lists of hazardous
wastes under Secs. 261.31 and 261.32 (see 58 FR 58521). Subsequently,
in response to a commenter's request, the Agency published a notice
extending the comment period until January 3, 1994 (see 58 FR 67389,
December 21, 1993).
This rulemaking addresses public comments received on the proposal
and finalizes the proposed decision to grant CSI's petition.
II. Disposition of Petition
Conversion Systems, Inc., Horsham, Pennsylvania
A. Proposed Exclusion
CSI petitioned the Agency for a multiple-site exclusion for
chemically stabilized electric arc furnace dust (CSEAFD) resulting from
the Super DetoxTM treatment process as modified by CSI. (The
original Super DetoxTM treatment process was developed by
Bethlehem Steel Corporation and used at its Johnstown and Steelton,
Pennsylvania facilities.) Specifically, CSI requested that the Agency
grant a multiple-site exclusion for CSEAFD generated by CSI using its
modified Super DetoxTM process at the existing Sterling, Illinois
facility at Northwestern Steel and future facilities to be constructed
(CSI initially is planning to construct 12 other facilities
nationwide). The resulting CSEAFD is classified as a K061 hazardous
waste by virtue of the ``derived from'' rule (Sec. 261.3(c)(2)(i)),
because it is generated from the treatment of a hazardous waste
(electric arc furnace dust) which is currently listed as EPA Hazardous
Waste No. K061--``Emission control dust/sludge from the primary
production of steel in electric furnaces.'' The listed constituents of
concern for EPA Hazardous Waste No. K061 are cadmium, hexavalent
chromium, and lead. CSI petitioned to exclude Super DetoxTM
treatment residues because it does not believe that the CSEAFD meets
the criteria for which K061 was listed. CSI also believes that the
Super DetoxTM process, as modified by CSI, generates a non-
hazardous waste because the constituents of concern, although present
in the waste, are in an essentially immobile form. CSI further believes
that the 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). Lastly, CSI believes that a multiple-site delisting will
save both EPA and CSI the cost and administrative burden of multiple
petitions each providing essentially the same, duplicative information
of a process already well known and accepted by the Agency as effective
in treating EAFD wastes (see final exclusions for Bethlehem Steel
Corporation's Johnstown and Steelton, Pennsylvania facilities in 54 FR
21941, May 22, 1989). 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).
In support of its petition, CSI submitted: (1) Detailed
descriptions and schematics of the Super DetoxTM treatment process
for both wet and dry electric arc furnace dust 1; (2) total
constituent analyses results for the eight Toxicity Characteristic (TC)
metals listed in Sec. 261.24 and six other metals from representative
samples of the untreated (non-stabilized) EAFD; (3) Toxicity
Characteristic Leaching Procedure (TCLP, SW-846 Method 1311) results
for the eight TC metals from a representative sample of untreated EAFD;
(4) TCLP results for the eight TC metals and six other metals from
representative samples of the uncured CSEAFD; (5) Multiple Extraction
Procedure (MEP, SW-846 Method 1320) results for the TC metals and six
other metals from representative samples of the uncured CSEAFD; (6)
total oil and grease (TOG), total cyanide, and total sulfide results
from representative samples of the untreated EAFD; (7) information and
test results regarding the hazardous waste characteristics of
ignitability, corrosivity, and reactivity for the CSEAFD; and (8)
ground-water monitoring data from the landfill containing the CSEAFD
generated from CSI's Sterling, Illinois Super DetoxTM facility.
\1\ CSI has claimed some treatment process descriptions,
including information on how they improved the original Super
DetoxTM treatment process, as confidential business information
(CBI). This information, therefore, is not available in the RCRA
public docket for today's notice.
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B. Request for Public Hearing
During the comment period, Horsehead Resource Development Company,
Inc. (``HRD'') and one Congressman requested a formal public hearing to
allow interested parties a sufficient opportunity to comment on the
November 2, 1993 proposed rulemaking. HRD also indicated its desire to
cross-examine EPA and CSI witnesses. Following review of the issues
raised by the commenters, the Agency found no compelling need for a
public hearing and, therefore, notified the commenters of its decision
not to [[Page 31109]] hold a hearing. See the docket for proposed
notice for the related correspondences. In its comments on the proposed
rule, HRD claimed that EPA's denial of its hearing request violates the
Administrative Procedure Act.
The Agency notes that the applicable regulations (40 CFR
Sec. 260.20(d) and Sec. 25.5) specify only that EPA hold an informal
hearing at its discretion. The Agency believes that given the highly
technical nature of the proposal, written documentation is a more
appropriate medium for the issues raised. In addition, even if a
hearing were held, such process would not encompass the formal
testimony of EPA staff and expert witnesses HRD was seeking; the Agency
would merely use this procedure to gather oral comments for the record.
The Agency believes a hearing was unnecessary, and that the Agency's
procedures were consistent with the Administrative Procedure Act. In
any event, the Agency has met with HRD, the primary commenter opposing
this delisting, a number of times since the time of the proposal to
hear its views in person.
C. Summary of Responses to Public Comments
The Agency received public comments on the November 2, 1993
proposal from 18 interested parties. Eight of these commenters,
consisting chiefly of steelmaking concerns, clearly supported the
Agency's proposed decision to grant CSI's petition. One commenter had
questions about the RCRA permit requirements for CSI's future
facilities, and about the effective date of the proposed delisting in a
State not authorized to administer the Federal delisting program. Of
the nine remaining commenters, one commenter (HRD) strongly opposed the
Agency's proposed decision, and presented discussions on a variety of
issues. The remaining eight out of these nine commenters consisted of
Congressmen and Senators reiterating concerns about the proposed
delisting. Detailed Agency responses to all significant comments are
provided in a ``Response to Comments'' document, which is in the public
docket for today's rule. The following discussion is a summary of both
the most significant issues raised by HRD and EPA's responses.
Impact of This Delisting Upon Recycling of K061
Comment: A number of commenters, including HRD, claimed that the
proposed delisting would inappropriately and illegally allow for the
landfilling of chemically stabilized K061 that is currently being
recycled by high-temperature metals recovery (``HTMR'') facilities. The
commenters' assertions on this issue can be summarized as follows: (1)
Both RCRA and the Pollution Prevention Act of 1990 express a general
preference for resource recovery and reclamation over conventional
waste treatment and disposal. Accordingly, EPA is required by law to
promulgate regulations that encourage recycling over treatment and
disposal whenever possible. The CSI delisting violates these statutory
requirements because it encourages the landfilling of otherwise
recoverable materials. (2) EPA's delisting regulations require
compliance with these RCRA and PPA mandates. Specifically, the
regulations require EPA to consider factors in addition to those for
which the waste was originally listed as a hazardous waste if such
factors could cause the waste to be listed as a hazardous waste (40 CFR
260.22(a)(2) and 261.11(a)(3)(xi)). EPA must consider, as one of these
factors, the impact of the CSI delisting on the overarching mandates of
RCRA and the PPA, and must conclude that the CSI delisting is
inconsistent with these statutes. (3) The delisting would violate EPA's
own regulatory strategy and prior policies and rulemaking precedents
favoring resource conservation and recovery over stabilization. These
policies and precedents appear in the Agency's RCRA implementation
strategy, land disposal regulations and waste minimization guidance.
(4) The CSI delisting would also violate the Administration's stated
policy to encourage recycling technologies and a ``green'' economy.
On the other hand, one commenter supporting the proposed delisting
stated that the delisting must be granted as a matter of law because
EPA has determined that the chemically stabilized EAFD residues do not
``pose a substantial hazard to human health or the environment'' and
therefore are not ``hazardous wastes'' subject to RCRA regulation,
citing RCRA section 1004(5) and 40 CFR 260.22 (a), (b) and 261.11(a).
This commenter claimed that the delisting is consistent with the waste
management objectives of RCRA and the PPA, which encourage EPA to
promote various alternatives to the untreated land disposal of
hazardous waste.
Response: After careful evaluation of the characteristics and
nature of the K061 residues produced by CSI's stabilization process,
EPA is today finalizing a determination that these residues do not
constitute RCRA hazardous waste. Specifically, EPA has found that these
chemically stabilized K061 wastes do not meet any of the criteria for
which K061 wastes were listed as hazardous and that there is no reason
to believe that any factors other than those for which K061 wastes were
listed (including additional constituents) could cause these CSI wastes
to be hazardous. See 40 CFR 260.22(a) and RCRA section 3001(f).
In light of EPA's determination that CSI's treated K061 waste is
not hazardous, the Agency has no authority to retain this waste as a
listed hazardous waste simply because doing so would effectively
promote HTMR recycling and reclamation of K061 wastes over the
treatment and disposal of CSI's chemically stabilized, non-hazardous
waste. RCRA's general statements of Congressional findings, objectives
and national policy addressing the subject of minimizing hazardous
waste generation and disposal do not supersede the specific hazardous
waste listing and delisting scheme established under RCRA. Here, under
that scheme, EPA has determined that CSI's treated waste does not meet
the criteria for being considered hazardous waste. Nothing in the
general objectives and policy provisions of RCRA generally favoring
resource recovery over conventional waste treatment and disposal
requires, or indeed authorizes, EPA to forego or reverse this
determination. See Hazardous Waste Treatment Council v. EPA, 861 F.2d
270, 276-77 (D.C. Cir. 1988).
Similarly, EPA cannot agree with the commenter's conclusion that
this delisting conflicts with the mandates of the Pollution Prevention
Act of 1990 (``PPA''). Section 6602(b) of the PPA (42 U.S.C. 13101(b))
declares it to be the national policy that pollution control should
follow a hierarchy which prefers pollution prevention at the source
over recycling and prefers recycling over treatment and disposal in an
environmentally safe manner. EPA fully supports this hierarchy and
believes it sets forth a desirable general order of preferences for
pollution control. Again, however, this policy is not a statutory or
regulatory mandate. Nothing in the PPA requires or even contemplates
that EPA must retain on the list of hazardous wastes materials that the
Agency finds to be non-hazardous simply because there exists an ability
to perform resource recovery on these materials.
EPA also disagrees with the commenter's claim that the delisting
regulations require this delisting to be denied. 40 CFR 260.22(a)(2)
focuses on factors that ``could cause the waste to be a hazardous
waste''. The factor cited by the commenter does not fit this
description. In addition, EPA finds that [[Page 31110]] today's
delisting decision is fully consistent with the Agency's and the
Administration's own regulatory strategy and policies, as explained in
the Response to Comments document.
In any event, EPA believes that today's delisting decision does
harmonize with the overall intent and purposes of RCRA and the PPA.
While these two statutes generally encourage resource recovery where
appropriate, they do not require it in every conceivable case,
regardless of the nature of the waste. Indeed, the commenter's
interpretation would have the effect of contravening Congressional
intent to allow for delistings where appropriate.
EPA also notes that the effect of this delisting on K061 recycling
practices is speculative in any event. As explained in the Response to
Comments document, the extent to which steelmakers may stop using
recycling technologies upon today's delisting in favor of managing EAFD
through CSI's Super DetoxTM process is unclear.
EPA's response on these issues is further explained in the Response
to Comments document for this rulemaking.
Multiple Site Nature of the Delisting
Comment: One commenter (HRD) stated that the multiple-site nature
of the delisting for CSI is precedent-setting but the Agency has
offered no legal justification for it. The commenter believed that 40
CFR 260.22 and RCRA section 3001(f) limit the scope of delisting
petitions to wastes generated at a single facility. This commenter also
claimed that this delisting violates the notice and comment
requirements of the Administrative Procedure Act because there will be
no opportunity for comment on any of the CSEAFD delistings at future
CSI sites.
Another commenter, however, believed that the multiple-site nature
of the delisting would avoid duplicative delisting petitions and save
the steel industry the unnecessary costs and administrative burdens of
multiple petitions.
Response: The statute and regulations do not limit the availability
of delisting decisions to wastes generated at a single facility. The
commenter has misinterpreted the language of section 3001(f) of RCRA
and 40 CFR 260.22, which both provide that parties may seek delistings
for wastes generated at a ``particular facility.'' The term
``particular facility'' refers to a specific qualifying facility and
there is no bar to a delisting covering more than one particular, and
qualifying, facility. The language limits delistings to an identified
and qualifying facility or facilities; it does not limit them to a
``single'' facility. The intent of this language is to indicate that,
because delistings are granted only to specific qualifying facilities,
a facility may not manage its waste as non-hazardous based solely on a
delisting granted to another facility for the same listed waste.
Today's multiple-site delisting is fully consistent with the
purposes of RCRA's listing and delisting scheme. If CSI has more than
one facility treating the same wastes with the same process, and EPA is
assured (through verification testing) that these wastes meet the
requirements for being nonhazardous, the statute, its legislative
history and the regulations support their removal from the list of
hazardous wastes. No part of the statute or regulations purports to
limit the number of facilities that a delisting may cover. As to the
``up-front'' nature of this delisting, the Agency in fact has a long-
standing policy and practice of granting delistings to facilities not
yet constructed, provided that their waste, once produced, meets
specified criteria.
In any event, today's delisting decision appears to be consistent
even with the commenter's incorrect interpretation of the statute and
regulations. Today's action does not automatically grant a delisting to
a multiple number of CSI's facilities. Instead, although EPA has
reviewed the Super DetoxTM treatment process itself on a generic
basis, EPA is requiring verification testing at each specific facility
before the Agency grants a delisting. Thus, the Agency is, in fact,
considering each CSEAFD facility separately. The focus of the
commenter's criticism would seem to be that EPA is not requiring the
company to submit a separate delisting petition for each new facility.
It would make no sense to require a company to submit multiple
individual petitions for similar wastes generated from similar process
and feed materials when the only difference between petitions is the
name and location of the specific facility; to do so would be an
unnecessary administrative burden and waste of resources for both EPA
and the petitioner.
The commenter also alleged an inconsistency with EPA's 1993
publication, ``Petitions to Delist Hazardous Wastes: A Guidance
Manual'' (second edition). The Manual states that ``separate petitions
must be submitted for wastes generated at different facility locations,
even if the contributing processes and raw materials are similar. This
requirement is necessary because an amendment to 40 CFR part 261 for an
exclusion only applies to a waste produced at a particular facility.''
This provision was originally included in the draft of the Manual at a
point before EPA contemplated the type of multiple-site delisting
requested by CSI, and it has been inadvertently carried over in later
revisions of the guidance document. EPA has accepted CSI's petition for
a multiple-site delisting because of the efficiencies created and in
light of the protections afforded by future verification testing. To
the extent this provision in the guidance document is viewed as
inconsistent with today's delisting, the guidance document should be
considered superseded by the notice of proposed rulemaking and this
final rulemaking for the CSI delisting to permit appropriate multiple-
site petitions here and in the future. In any event, EPA's practice has
evolved beyond the provision originally included in this non-binding
guidance document and today's action is fully consistent with that
practice.
EPA also disagrees with the commenter's claim that today's
delisting violates the notice and comment requirements of the
Administrative Procedure Act (``APA'') since there will be no
opportunity for comment on additional CSI facilities producing CSEAFD
that may be added to the scope of this delisting in the future. There
has been sufficient opportunity for meaningful comment on the current
and potential future delistings of CSI facilities producing CSEAFD
since all issues the Agency will possibly consider in granting the
future delistings have already been aired for comment.
EPA's response on these issues is further explained in the Response
to Comments document for this rulemaking.
Executive Order 12866
Comment: One commenter (HRD) alleged that EPA did not conduct the
complete regulatory review required by Executive Order 12866 for
significant regulatory actions having an annual effect on the economy
of $100 million or more. By HRD's account, the economic impact of this
delisting would exceed $100 million/year because electric arc furnace
(``EAF'') steelmakers will choose to abandon the existing high
temperature metals recovery (HTMR) operations and give all K061 waste
treatment business to CSI. The commenter also alleged that EPA failed
to consider the other principles of regulatory development stipulated
in the Executive Order.
Response: The Agency determined that the effect of the proposed
rule, [[Page 31111]] unlike regulations imposing tighter control
requirements, would be to reduce the overall costs and economic impact
of the RCRA regulations. Therefore, this rule is unlikely to have an
adverse annual effect on the economy of $100 million or more. The
extent to which EAF steelmakers may change from one waste management
alternative such as recycling to other methods after today's delisting
is speculative in any event.
In addition, the Agency did not fail to consider the other
principles of regulatory development stipulated in the Executive Order.
See the Response to Comments document for a further discussion of these
issues.
Waste Management
Comment: One commenter (HRD) noted that CSI may develop products
from CSEAFD, that the delisted waste may be delivered to a facility
that beneficially uses or reuses the material and that the waste may be
disposed of in any acceptable manner under Federal or State law. As
such, this commenter believed that the assumption of disposal in a
Subtitle D landfill is not the reasonable worst-case disposal scenario
for CSI's petitioned waste. In support of its argument, the commenter
submitted an excerpt of a paper presented by a CSI employee at a trade
meeting held in February 1995. This excerpt reflects two alternative
concepts that are being developed'' for recycling EAFD, including use
of stabilized EAFD as ingredients in the production of Portland cement.
Response: CSI indicated in its petition that the CSEAFD will be
disposed of at non-hazardous waste landfills. EPA does not have any
specific information that CSI has developed its CSEAFD into any viable
product that would allow for use or reuse of this material instead of
disposal. Therefore, it is unclear if, when, or how potential CSEAFD-
derived products may be used in the future. EPA's assumption that CSI's
petitioned waste, if delisted, will be disposed of in a Subtitile D
landfill is conservative and represents a reasonable worst-case
management scenario for this delisting for the decision that CSI's
CSEAFD may safely be disposed of as a non-hazardous ``waste''.
Nevertheless, as the commenter pointed out and as the petition also
indicates, CSI is working on different ways to reuse the CSEAFD as a
feedstock or product (see Page 17 of CSI's petition). It is unclear if
the effectiveness of CSI's stabilization process could be somewhat
compromised as a result of certain product-use applications; or if the
levels of total constituents in the CSEAFD could become a concern due
to certain exposure scenarios not considered in the delisting
evaluation. Because EPA was not provided with any detailed information
and data from CSI on how its waste might be used in products, EPA
believes it is appropriate to limit the scope of today's final rule to
exclude CSI's CSEAFD only where it is disposed of in Subtitle D
landfills. EPA does not reach a decision today on whether CSI's CSEAFD
that is not disposed of in Subtitile D landfills qualifies for
exclusion from the list of hazardous wastes. In the future, if CSI has
successfully developed uses for CSEAFD and seeks an exclusion for such
uses, it must submit pertinent information in a petition to EPA and
await further decision by the Agency on that matter.
Potential Deterioration of CSI's Stabilized K061
Comment: One commenter (HRD) stated that the petition relied on the
TCLP and MEP chemical testing procedures to determine the efficacy of
CSI's stabilization process, but largely failed to address the long-
term physical durability (or structural integrity) of the stabilized
EAFD. The commenter believed that the stabilized EAFD will deteriorate
over time once disposed of in landfills or elsewhere, which could
result in airborne or waterborne exposure which was not evaluated. The
commenter presented a list of applicable physical test methods, and
suggested that at a minimum, freeze-thaw and wet-dry durability tests
be performed, and that EPA should apply ``deterioration models.''
Response: This rulemaking adequately addresses the potential
deterioration of CSI's CSEAFD and the resulting leachability of the
material. The MEP was developed to predict the long-term leachability
of stabilized wastes, consisting of ten sequential extractions that
simulate approximately 1,000 years of acid rainfall. This method
requires that the sample of stabilized material be first crushed and
ground so that the sample material can pass through a 9.5-mm sieve (as
part of the TCLP extraction incorporated in the MEP). The use of
particles less than 9.5 mm is comparable to a worst-case assumption of
degradation of the stabilized material. EPA also conservatively assumed
that the total constituents in the waste would be readily available for
release into air (ignoring that they are contained in the solidified
waste matrix). Therefore, this evaluation also addressed the potential
deterioration and airborne transmission of the waste.
Use of EPA's Composite Model for Landfills (EPACML)
Comment: One commenter (HRD) claimed that the EPACML model was not
adequate for evaluating CSI's petitioned waste for several reasons.
First, more accurate models, such as MINTEQ, must be used to quantify
the migration and mobility of metals from land disposal units. Second,
the Monte Carlo simulation mode implemented in the model is
inappropriate for multiple site delistings because it does not account
for site-specific variability. The commenter felt that only numerical
models can account for such variability. Third, the model does not
check for unrealistic combinations of input parameters, thereby
resulting in inaccurate dilution and attenuation factors (DAFs). The
commenter felt that the combination of input parameters should have
been made public to allow for review and comment. Lastly, the commenter
stated that the Agency did not clearly identify and justify the
specific options used in the EPACML model for the delisting evaluation.
Response: The Agency disagrees with the commenter's contention that
the EPACML model is inadequate for evaluating CSI's petitioned waste.
First, the EPACML fate and transport model consists of an unsaturated
zone module and a saturated zone module, both of which were reviewed
and endorsed by EPA's Science Advisory Board for use for regulatory
purposes. See 56 FR 32993 (July 18, 1991) and the EPACML Background
Document 2 for a complete discussion of the EPACML model,
assumptions and input parameters, and their use in delisting decision-
making. EPA believes that the EPACML reasonably estimates the
subsurface fate and transport of metals from land disposal units.
\2\ ``Background Document for EPA's Composite Model for
Landfills (EPACML)'', available in the RCRA public docket for the
November 2, 1993 proposed rule.
For prior cases, the MINTEQ model has not been found appropriate
for use for delisting evaluations. To use it would require a large
amount of additional information regarding the speciation of the metals
present in the waste and the disposal site. EPA has discussed its
finding that the EPACML model is adequate and conservative for
delistings. Indeed, incorporation of results of MINTEQ in the EPACML
model would only be less conservative if anything--i.e., it would
likely serve only to increase the output DAFs [[Page 31112]] because
speciation reactions between metallic ions in the leachate and the soil
particles may cause further attenuation of metal concentrations in the
subsurface. These higher DAFs would result in even higher allowable
leachable levels of metals in CSI's waste.
In addition, the Agency disagrees with the commenter's claim that
the Monte Carlo simulation mode implemented in the EPACML is
inappropriate for multiple site delistings and disagrees with the
commenter's remaining contentions regarding the use of the EPACML
model. See the Response to Comment document for a further discussion of
all of these issues.
Verification Testing Conditions
Comment: One commenter (HRD) stated that the proposed initial and
subsequent testing conditions are insufficient. The commenter believed
that these testing conditions will result in over-compositing of the
samples collected from each batch, as they require only a minimum of
four composite samples during the 20-day initial verification testing
period and thereafter a minimum of one monthly composite sample.
Response: Although the concentrations of metals in the CSEAFD are
expected to be somewhat variable over time (e.g., as the source and
type of scrap charged to the EAF changes over time), EPA does not
expect these variations to be significant on a day-to-day basis (i.e.,
most steel mills procure large volumes of scrap and their EAF
operations do not vary widely on a daily basis). Also, at any given
facility, the daily variations in EAFD metals concentrations are
dampened where the EAFD is mixed together within the pneumatic EAFD
transport system, baghouse, electrostatic precipitator, and/or storage
silos. The Agency, therefore, believes that the proposed initial
verification testing requirement is sufficient.
In addition, the data demonstrate that CSI's Super DetoxTM
process can effectively immobilize the constituents of concern, and
justify the Agency's proposal to require less frequent, but long-term,
verification testing (monthly or more frequently at CSI's discretion)
subsequent to the initial verification testing.
Delisting Levels
In the proposed rule EPA solicited comments on the proposed maximum
allowable leachable concentrations for a specific set of inorganic
constituents (the ``delisting levels'') that CSI would need to meet
during verification testing. In this respect, the Agency also requested
comments on the option of applying the generic exclusion levels for
K061 HTMR nonwastewater residues set under Sec. 261.3(c)(2)(ii)(C) to
CSI's CSEAFD for the sake of national consistency. No comments were
received on which of these two approaches should be chosen. The Agency
has now concluded that the delisting levels applying to CSI's CSEAFD
should be at least as stringent as the K061 HTMR generic exclusion
levels. Therefore, the Agency is finalizing the delisting levels by
using the lesser of the proposed levels for CSI's CSEAFD and the
respective generic exclusion levels for HTMR residues, as shown below
(in ppm): Antimony--0.06; arsenic--0.50; barium--7.6; beryllium--0.010;
cadmium--0.050; chromium--0.33; lead--0.15; mercury--0.009; nickel--1;
selenium--0.16; silver--0.30; thallium--0.020; vanadium--2; and zinc--
70.
Economics and Related Issues
Comment: A number of commenters raised issues concerning the
economic and related implications of this delisting. First, the Steel
Manufacturers Association (``SMA'') claimed that this delisting is
necessary in order to increase the number of cost-effective
alternatives for managing K061 waste. Because of the high cost of HTMR,
SMA stated, steelmakers ultimately may be forced to substitute greater
tonnages of direct reduced iron as feedstock instead of using scrap
metal. Direct reduced iron contains only pure iron, so any EAFD
generated from it would not contain hazardous metals (obviating the
need to use HTMR processes). By granting the delisting, EPA will be
promoting the continued resource recovery of iron and other valuable
metals from scrap metal (of which, SMA claimed, about 40 million tons
per year are currently used as EAF steelmaking feedstock).
Another commenter (HRD) disagreed with the above claims. It pointed
out that the cost of managing EAFD by either HTMR or chemical
stabilization and disposal is less than one percent of the steel
production cost, and that the savings from switching to chemical
stabilization would amount to only cents per ton of production. HRD
claimed that direct reduced iron is much more expensive than scrap
metal, affecting the cost of steelmaking 10 times as much as the cost
of EAF dust management. Hence, HRD disputed the claim that steel makers
might discontinue the use of scrap feedstock if this delisting is not
granted. HRD also stated that the steel industry in fact has a number
of EAFD management options, including HTMR processing by HRD and other
firms, treatment and disposal as a hazardous waste, use as a fertilizer
ingredient, and export for processing.
Response: The focus of today's delisting decision is on whether or
not CSI's stabilized EAFD should continue to be listed as hazardous
waste in light of the relevant statutory and regulatory criteria. As
explained above, EPA has found that CSI's chemically stabilized K061
wastes do not meet any of the criteria for which K061 wastes were
listed as hazardous and there is no reason to believe that any factors
other than those for which K061 wastes were listed (including
additional constituents) could cause these wastes to be hazardous.
Therefore, today's rule finalizes EPA's determination to exclude these
residues from the RCRA Subtitle C regulatory regime. See 40 CFR
Sec. 260.22(a) and RCRA Section 3001(f).
EPA explained above that the effect of today's delisting decision
on K061 recycling (i.e., whether granting this delisting effectively
promotes treatment and disposal of K061 wastes over HTMR recycling of
these wastes) is irrelevant to the delisting determination. Similarly,
the economic and related issues that have been raised by the commenters
are not relevant to today's delisting decision because they bear no
nexus to the issue of whether the stabilized K061 wastes remain
hazardous. See the Response to Comments document for a further
discussion of these issues.
D. Final Agency Decision
For the reasons stated in both the proposal and this notice, the
Agency believes that CSI's chemically stabilized electric arc furnace
dust, upon meeting certain verification testing requirements, should be
excluded from hazardous waste control. The Agency, therefore, is
granting a final conditional exclusion to Conversion Systems, Inc.,
Horsham, Pennsylvania, for its treatment residue (CSEAFD) generated at
its Sterling, Illinois facility and other facilities yet to be
constructed nationwide, described in its petition as EPA Hazardous
Waste No. K061.
This exclusion applies initially to only CSI's Super DetoxTM
treatment facility located at Northwestern Steel in Sterling, Illinois.
As stated in Condition (5), CSI must notify EPA at least one month
prior to operation of a new Super DetoxTM treatment facility in
order to provide EPA with sufficient time to initiate the process to
amend CSI's exclusion. CSEAFD generated from a new Super DetoxTM
treatment facility will not be excluded until the Agency
[[Page 31113]] publishes a notice amending CSI's exclusion as specified
in Condition (1)(B). CSI will require a new exclusion if the treatment
process specified for any Super DetoxTM treatment facility is
significantly altered beyond the changes in operating conditions
described in Condition (4). Accordingly, the facility would need to
file a new petition for a changed process. The facility must manage
wastes generated from a changed process as hazardous until a new
exclusion is granted.
Although the CSEAFD wastes covered by this petition are excluded
from regulation as listed hazardous wastes under Subtitle C upon
today's final exclusion, this exclusion applies only where these wastes
are disposed of in Subtitle D landfills.
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 State. 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 authority to determine the current status of their wastes
under State law.
Furthermore, some States (e.g., Georgia, Illinois) 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 CSEAFD will be
transported to and managed in any State with delisting authorization,
CSI must obtain delisting authorization from that State before the
CSEAFD may be managed as non-hazardous in the State.
IV. Effective Date
This rule is effective on June 13, 1995. 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, rather than increases, 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 of six months after publication and the
fact that a six-month deadline is not necessary to achieve the purpose
of Section 3010, EPA believes that this rule should be effective
immediately upon publication. These reasons also provide a basis for
making this rule effective immediately, upon publication, under the
Administrative Procedure Act, pursuant to 5 U.S.C. 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 a facility to treat its waste as non-
hazardous. As discussed in the Agency response to public comments, this
rule is unlikely to have an adverse annual effect on the economy of
$100 million or more. Therefore, 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 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 which
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 any impact on any small entities.
This regulation will not have an adverse impact on any small
entities since its effect will be to reduce the overall costs of EPA's
hazardous waste regulations. 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 recordkeeping 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.
Lists of Subjects in 40 CFR Part 261
Hazardous Waste, Recycling, Reporting and recordkeeping
requirements.
[[Page 31114]] Dated: May 30, 1995.
Michael H. Shapiro,
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
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
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*
Conversion Systems, Horsham, Pennsylvania Chemically Stabilized Electric Arc Furnace Dust (CSEAFD) that is
Inc. generated by Conversion Systems, Inc. (CSI) (using the Super
DetoxTM treatment process as modified by CSI to treat EAFD (EPA
Hazardous Waste No. K061)) at the following sites and that is
disposed of in Subtitle D landfills:
Northwestern Steel, Sterling, Illinois after June 13, 1995.
CSI must implement a testing program for each site that meets the
following conditions for the exclusion to be valid:
(1) Verification Testing Requirements: Sample collection and
analyses, including quality control procedures, must be performed
according to SW-846 methodologies.
(A) Initial Verification Testing: During the first 20 operating
days of full-scale operation of a newly constructed Super DetoxTM
treatment facility, CSI must analyze a minimum of four (4)
composite samples of CSEAFD representative of the full 20-day
period. Composites must be comprised of representative samples
collected from every batch generated. The CSEAFD samples must be
analyzed for the constituents listed in Condition (3). CSI must
report the operational and analytical test data, including
quality control information, obtained during this initial period
no later than 60 days after the generation of the first batch of
CSEAFD.
(B) Addition of New Super DetoxTM Treatment Facilities to
Exclusion: If the Agency's review of the data obtained during
initial verification testing indicates that the CSEAFD generated
by a specific Super DetoxTM treatment facility consistently meets
the delisting levels specified in Condition (3), the Agency will
publish a notice adding to this exclusion the location of the new
Super DetoxTM treatment facility and the name of the steel mill
contracting CSI's services. If the Agency's review of the data
obtained during initial verification testing indicates that the
CSEAFD generated by a specific Super DetoxTM treatment facility
fails to consistently meet the conditions of the exclusion, the
Agency will not publish the notice adding the new facility.
(C) Subsequent Verification Testing: For the Sterling, Illinois
facility and any new facility subsequently added to CSI's
conditional multiple-site exclusion, CSI must collect and analyze
at least one composite sample of CSEAFD each month. The composite
samples must be composed of representative samples collected from
all batches treated in each month. These monthly representative
samples must be analyzed, prior to the disposal of the CSEAFD,
for the constituents listed in Condition (3). CSI may, at its
discretion, analyze composite samples gathered more frequently to
demonstrate that smaller batches of waste are nonhazardous.
(2) Waste Holding and Handling: CSI must store as hazardous all
CSEAFD generated until verification testing as specified in
Conditions (1)(A) and (1)(C), as appropriate, is completed and
valid analyses demonstrate that Condition (3) is satisfied. If
the levels of constituents measured in the samples of CSEAFD do
not exceed the levels set forth in Condition (3), then the CSEAFD
is non-hazardous and may be disposed of in Subtitle D landfills.
If constituent levels in a sample exceed any of the delisting
levels set in Condition (3), the CSEAFD generated during the time
period corresponding to this sample must be retreated until it
meets these levels, or managed and disposed of in accordance with
Subtitle C of RCRA. CSEAFD generated by a new CSI treatment
facility must be managed as a hazardous waste prior to the
addition of the name and location of the facility to the
exclusion. After addition of the new facility to the exclusion,
CSEAFD generated during the verification testing in Condition
(1)(A) is also non-hazardous, if the delisting levels in
Condition (3) are satisfied.
(3) Delisting Levels: All leachable concentrations for those
metals must not exceed the following levels (ppm): Antimony--
0.06; arsenic--0.50; barium--7.6; beryllium--0.010; cadmium--
0.050; chromium--0.33; lead--0.15; mercury--0.009; nickel--1;
selenium--0.16; silver--0.30; thallium--0.020; vanadium--2; and
zinc--70. Metal concentrations must be measured in the waste
leachate by the method specified in 40 CFR 261.24.
(4) Changes in Operating Conditions: After initiating subsequent
testing as described in Condition (1)(C), if CSI significantly
changes the stabilization process established under Condition (1)
(e.g., use of new stabilization reagents), CSI must notify the
Agency in writing. After written approval by EPA, CSI may handle
CSEAFD wastes generated from the new process as non-hazardous, if
the wastes meet the delisting levels set in Condition (3).
[[Page 31115]]
(5) Data Submittals: At least one month prior to operation of a
new Super DetoxTM treatment facility, CSI must notify, in
writing, the Chief of the Waste Identification Branch (see
address below) when the Super DetoxTM treatment facility is
scheduled to be on-line. The data obtained through Condition
(1)(A) must be submitted to the Branch Chief of the Waste
Identification Branch, OSW (Mail Code 5304), U.S. EPA, 401 M
Street, SW, Washington, DC 20460 within the time period
specified. Records of operating conditions and analytical data
from Condition (1) must be compiled, summarized, and maintained
on site for a minimum of five years. These records and data must
be furnished upon request by EPA, or the State in which the CSI
facility is located, and made available for inspection. Failure
to submit the required data within the specified time period or
maintain the required records on site for the specified time will
be considered by EPA, at its discretion, sufficient basis to
revoke the exclusion to the extent directed by EPA. All data must
be accompanied by 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 cannot 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.
In the event that 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.
* * * * * *
*
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[FR Doc. 95-14338 Filed 6-12-95; 8:45 am]
BILLING CODE 6560-50-P
