02-18711. Hazardous Waste Management System; Identification and Listing of Hazardous Waste Final Exclusion

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA (also, “the Agency” or “we” in this preamble) is granting a petition submitted by Ormet Primary Aluminum Corporation (Ormet) to exclude (or “delist”) vitrified spent potliner (VSP), generated and treated at the Ormet facility in Hannibal, Ohio from the lists of hazardous wastes. Spent potliners from primary aluminum reduction are listed as hazardous waste number K088 under the Resource Conservation and Recovery Act (RCRA).

Today's action 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 to manage industrial solid waste.

EFFECTIVE DATE:

This rule is effective on July 25, 2002.

ADDRESSES:

The RCRA regulatory docket for this final rule, number R5-ORMT-01, is located at the U.S. EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60604, and is available for viewing from 8 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. Call Todd Ramaly at [phone] for appointments. The public may copy material from the regulatory docket at $0.15 per page.

FOR FURTHER INFORMATION CONTACT:

For technical information concerning this document, contact Todd Ramaly at the address above or at [phone].

SUPPLEMENTARY INFORMATION:

The information in this section is organized as follows:

I. Background

A. What Is a Delisting Petition?

B. What Regulations Allow a Waste to Be Delisted?

II. Ormet's Delisting Petition

A. What Waste Did Ormet Petition EPA to Delist?

B. What Information Must the Generator Supply?

C. What Information Did Ormet Submit to Support This Petition?

III. 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?

IV. Public Comment Received on the Proposed Exclusion and EPA's Responses

V. Regulatory Impact

VI. Congressional Review Act

I. Background

A. What Is a Delisting Petition?

A delisting petition is a request from a generator to exclude waste from the list of hazardous wastes under RCRA regulations. In a delisting petition, the petitioner must show that waste generated at a particular facility does not meet any of the criteria for which EPA listed the waste as set forth in Title 40, Code of Federal Regulations (CFR) 261.11 and in the background document for the waste. A petitioner must demonstrate that the waste does not exhibit any of the hazardous waste characteristics (that is, ignitability, reactivity, corrosivity, and toxicity) and must present sufficient information for us to decide whether any factors other than those for which the waste was listed warrant retaining it as a hazardous waste.

A generator remains obligated under RCRA to confirm that its waste remains nonhazardous based on the hazardous waste characteristics even if EPA has “delisted” the wastes.

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 wastes from hazardous waste control by excluding it from the lists of hazardous wastes contained in §§ 261.31 and 261.32. Specifically, § 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. Ormet's Delisting Petition

A. What Waste Did Ormet Petition EPA To Delist?

On April, 8, 1994, Ormet submitted an up front petition to exclude vitrified spent potliner, K088, generated at its Hannibal Ohio plant from the list of hazardous wastes contained in 40 CFR 261.31. In December 1999, Ormet submitted a revised petition to exclude an annual volume of 8,500 cubic yards of K088 generated under full scale operation. K088 is defined as spent potliners from primary aluminum reduction.

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 Ormet Submit To Support This Petition?

To support its petition, Ormet submitted descriptions and schematic diagrams of its manufacturing and vitrification processes and detailed chemical and physical analysis of the vitrified potliner.

III. EPA's Evaluation and Final Rule

A. What Decision Is EPA Finalizing and Why?

Today the EPA is finalizing an exclusion for 8500 cubic yards of vitrified spent potliner generated and treated annually at the Ormet facility in Hannibal, Ohio.

Ormet petitioned EPA to exclude, or delist, the vitrified spent potliner because Ormet believes that the petitioned waste does not meet the criteria for which it was listed it 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(d)(2)-(4).

On August 21, 2001 EPA proposed to exclude or delist Ormet's vitrified spent potliner from the list of hazardous wastes in 40 CFR 261.31 and accepted public comment on the proposed rule (66 FR 43823). EPA considered all comments received, and for reasons stated in both the proposal and this document, we believe that Ormet's waste should be excluded from hazardous waste control.

B. What Are the Terms of This Exclusion?

Ormet must dispose of the vitrified spent potliner in a Subtitle D landfill which is permitted, licensed, or registered by a state to manage industrial waste. Any amount exceeding 8,500 cubic yards, annually, 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 July 25, 2002. 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?

Because EPA is issuing today's exclusion under the federal RCRA delisting program, only states subject to federal RCRA delisting provisions would be affected. This exclusion may not be effective in states having a dual system that includes federal RCRA requirements and their own requirements, or in states which have received our authorization to make their own delisting decisions.

EPA allows states to impose their own non-RCRA regulatory requirements that are more stringent than EPA's, under section 3009 of RCRA. These more stringent requirements may include a provision that prohibits a federally issued exclusion from taking effect in the state. Because a dual system (that is, both federal (RCRA) and state (non-RCRA) programs) may regulate a petitioner's waste, we urge petitioners to contact the state regulatory authority to establish the status of their wastes under the state law.

EPA has also authorized some states to administer a delisting program in place of the federal program, that is, to make state delisting decisions. Therefore, this exclusion does not apply in those authorized states. If Ormet transports the petitioned waste to or manages the waste in any state with delisting authorization, Ormet must obtain a delisting from that state before it can manage the waste as nonhazardous in the state.

IV. Public Comments Received on the Proposed Exclusion and EPA's Responses

One comment was received from Ormet which pointed out that the proposed rule required sampling on a quarterly basis but required subsequent data submittals on a monthly basis. The discrepancy has been corrected. Verification sampling and data submittals are both required quarterly.

V. Regulatory Impact

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a rule of general applicability and therefore is not a “regulatory action” subject to review by the Office of Management and Budget. Because this action is a rule of particular applicability relating to a 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) (Public Law 104-4). Because the rule will affect only one facility, it will not significantly or uniquely affect small governments, as specified in section 203 of UMRA, or impose substantial direct compliance costs on Indian tribal governments as specified in Executive Order 13175, 65 FR 67249, November 6, 2000. For the same reason, this rule 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, or impose substantial direct compliance costs state and local governments as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This rule does not involve technical standards; thus, the requirements of section 12(c) 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 (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. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. 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.).

VI. Congressional Review Act

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 Congress and to the Comptroller General of the United States. EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability. Section 804 exempts from section 801 the following types of rules: rules of particular applicability; rules relating to agency management or personnel; and 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)). This rule is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will become effective on the date of publication in the Federal Register.

List of Subjects in 40 CFR Part 261

• Environmental Protection
• Hazardous waste
• Recycling
• Reporting and recordkeeping requirements

Dated: July 9, 2002.

Phyllis A. Reed,

Acting Director, Waste, Pesticides and Toxins Division.

For the reasons set out in the preamble, 40 CFR part 261 is amended as follows:

PART 261—IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

1. The authority citation for part 261 continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 6938.

2. In Table 2 of Appendix IX to part 261 add the following waste stream in alphabetical order by facility to read as follows:

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

Table 2.—Wastes Excluded From Specific Sources

Facility	Address	Waste description
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Ormet Primary Aluminum Corporation	Hannibal, OH	Vitrified spent potliner (VSP), K088, that is generated by Ormet Primary Aluminum Corporation in Hannibal (Ormet), Ohio at a maximum annual rate of 8,500 cubic yards per year and disposed of in a Subtitle D landfill, licensed, permitted, or registered by a state. The exclusion becomes effective as of July 25, 2002.
		1. Delisting Levels: (A) The constituent concentrations measured in any of the extracts specified in paragraph (2) may not exceed the following levels (mg/L): Antimony—0.235; Arsenic—0.107; Barium—63.5; Beryllium—0.474; Cadmium—0.171; Chromium (total)—1.76; Lead—5; Mercury—0.17; Nickel—32.2; Selenium—0.661; Silver—4.38; Thallium—0.1; Tin—257; Vanadium—24.1; Zinc—320; Cyanide—4.11. (B) Land disposal restrictions (LDR) treatment standards for K088 must also be met before the VSP can be land disposed. Ormet must comply with any future LDR treatment standards promulgated under 40 CFR 268.40 for K088.
		2. Verification Testing: (A) On a quarterly basis, Ormet must collect two samples of the waste and analyze them for the constituents listed in paragraph (1) using the methodologies specified in an EPA-approved sampling plan specifying (a) the TCLP method, and (b) the TCLP procedure with an extraction fluid of 0.1 Normal sodium hydroxide solution. The constituent concentrations measured in the extract must be less than the delisting levels established in paragraph (1). Ormet must also comply with LDR treatment standards in accordance with 40 CFR 268.40. (B) If the quarterly testing of the waste does not meet the delisting levels set forth in paragraph (1), Ormet must notify the Agency in writing in accordance with paragraph (5). The exclusion will be suspended and the waste managed as hazardous until Ormet has received written approval for the exclusion from the Agency. Ormet may provide sampling results that support the continuation of the delisting exclusion.
		3. Changes in Operating Conditions: If Ormet significantly changes the manufacturing process, the treatment process, or the chemicals used, Ormet must notify the EPA of the changes in writing. Ormet must handle wastes generated after the process change as hazardous until Ormet has demonstrated that the wastes continue to meet the delisting levels set forth in paragraph (1) and that no new hazardous constituents listed in Appendix VIII of part 261 have been introduced and Ormet has received written approval from EPA.
		4. Data Submittals: Ormet must submit the data obtained through quarterly verification testing or as required by other conditions of this rule to U.S. EPA Region 5, Waste Management Branch (DW-8J), 77 W. Jackson Blvd., Chicago, IL 60604 by February 1 of each calendar year for the prior calendar year. Ormet must compile, summarize, and maintain on site for a minimum of five years records of operating conditions and analytical data. Ormet must make these records available for inspection. All data must be accompanied by a signed copy of the certification statement in 40 CFR 260.22(i)(12).
		5. Reopener Language—(a) If, anytime after disposal of the delisted waste, Ormet possesses or is otherwise made aware of any data (including but not limited to leachate data or groundwater monitoring data) relevant to the delisted waste indicating that any constituent identified in paragraph (1) is at a level in the leachate higher than the delisting level established in paragraph (1), or is at a level in the groundwater higher than the point of exposure groundwater levels referenced by the model, then Ormet must report such data, in writing, to the Regional Administrator within 10 days of first possessing or being made aware of that data.
		(b) Based on the information described in paragraph (5)(a) or any other information received from any source, the Regional Administrator will make a preliminary determination as to whether the reported information requires Agency action to protect human health or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate response necessary to protect human health and the environment.
		(c) If the Regional Administrator determines that the information does require Agency action, the Regional Administrator will notify Ormet in writing of the actions the Regional Administrator believes are necessary to protect human health and the environment. The notice shall include a statement of the proposed action and a statement providing Ormet with an opportunity to present information as to why the proposed Agency action is not necessary or to suggest an alternative action. Ormet shall have 30 days from the date of the Regional Administrator's notice to present the information. (d) If after 30 days Ormet presents no further information, the Regional Administrator will issue a final written determination describing the Agency actions that are necessary to protect human health or the environment. Any required action described in the Regional Administrator's determination shall become effective immediately, unless the Regional Administrator provides otherwise.
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