E8-22170. Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Final Rule

AGENCY:

Environmental Protection Agency.

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is issuing a final rule to add the name of Structural Metals, Inc, to the exclusion granted to Conversion Systems Inc., (CSI) on June 13, 1995. As described in the exclusion issued to CSI in par agraph (1)(B), the Agency shall add the location of the treatment facility and the name of the steel mill contracting CSI's services. This rule adds the location of U.S. Ecology, Texas Ecology in Robstown, Texas as the treatment facility and Structural Metals, Inc. as the steel mill contracting the services of CSI. This rule also updates the 1995 exclusion to include Paragraphs (6) and (7), the Delisting Reopener language and Notification Requirements; and other updates regarding the disposal and submission of Quality Assurance Plan prior to submission of data for a new facility.

DATES:

This rule is effective September 23, 2008.

ADDRESSES:

The public docket for this direct final rule is located at 1445 Ross Avenue in the FOIA Review Room, identified by Docket ID No. EPA-R06-RCRA-2008-0455. All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Environmental Protection Agency, RCRA Branch, 1445 Ross Avenue, Dallas, TX 75202. The hard copy RCRA regulatory docket for this direct final rule, EPA-R06-RCRA-2008-0455, is available for viewing from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. The public may copy material from the regulatory docket at $0.15 per page. EPA requests that you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance. 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 further technical information concerning this document or for appointments to view the docket, contact Michelle Peace, Environmental Protection Agency, Multimedia Planning and Permitting Division, RCRA Branch, Mail Code: 6PD-C, 1445 Ross Avenue, Dallas, TX 75202, by calling 214-665-7430 or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

On June 13, 1995 (60 FR 31107), EPA finalized a conditional multiple site exclusion to Conversion Systems Inc., in Horsham, Pennsylvania. In 1995, CSI petitioned EPA for a multiple site exclusion for chemically stabilized electric arc furnace dust (CSEAFD) resulting from the Super Detox^TM process as modified by CSI. The original Super Detox^TMprocess was developed by Bethlehem Steel Corporation and used at its Johnstown and Steelton, Pennsylvania facilities. Specifically, CSI was granted the exclusion for CSEAFD generated at the existing Sterling, Illinois facility at Northwestern Steel and future facilities to be constructed. CSI initially planned to construct twelve other facilities nationwide. The resulting CSEAFD is classified as K061 hazardous waste by virtue of the derived from rule.

On March 20, 2006, CSI submitted a K061 Delisting Initial Verification Testing Report to EPA Region 6 in accordance with paragraph 1(A) of the exclusion. It lists Structural Metals Inc, as the new source and U.S. Ecology in Robstown, TX as the treatment location. The data package included sampling results from four (4) representative composite samples of the waste. This data was reviewed by EPA and also evaluated using the Delisting Risk Assessment Software (DRAS) currently used to evaluate new petitions. All constituent concentrations are below the delisting levels published in the exclusion and meet the current DRAS delisting exit levels.

The Agency is also taking this time to update the 1995 CSI exclusion to make the following corrections and additions to the exclusion:

(1) The address of the CSI facility has changed from Horsham, PA and is now located in Willow Grove, PA;

(2) Reports should be submitted to the appropriate Regional Director or his/her designee and no longer the EPA Administrator;

(3) New facilities added to this petition should submit and get EPA approval of their Quality Assurance Project Plans for the verification testing prior to requesting addition to the existing petition; and

(4) Paragraphs (6) and (7) are added to the exclusion language.

The purpose of paragraph (6), the Delisting Reopener Language, is to require the facility to disclose new or different information related to a condition at the facility or disposal of the waste, if it is pertinent to the delisting. The petitioner must also use this procedure, if the waste samples fail to meet the levels found in paragraph (3). This provision will allow EPA to reevaluate the exclusion, if a source provides new or additional information to EPA. EPA will evaluate the information on which it based the decision to see if it is still correct or if circumstances have changed so that the information is no longer correct or would cause EPA to deny the petition, if presented.

This provision expressly requires the petitioner to report differing site conditions or assumptions used in the petition. Additionally, it requires the petitioner to report within 10 days of discovery, instances where testing indicates that delisting levels were not achieved and the waste was subsequently managed as non-hazardous waste. If EPA discovers such information itself or from a third party, it can act on it as appropriate. The language being proposed is similar to those provisions found in RCRA regulations governing no-migration petitions at § 268.6.

It is EPA's position that it has the authority under RCRA and the Administrative Procedure Act (APA), 5 U.S.C. 551, et seq., to reopen a delisting decision. EPA may reopen a delisting decision when it receives new information that calls into question the assumptions underlying the delisting.

EPA believes a clear statement of its authority in delisting is merited in light of EPA's experience. See the Federal Register notice regarding Reynolds Metals Company at 62 FR 37694 (July 14, 1997) and 62 FR 63458 (December 1, 1997) where the delisted waste leached at greater concentrations into the environment than the concentrations predicted when conducting the TCLP, leading EPA to repeal the delisting. If an immediate threat to human health and the environment presents itself, EPA will continue to address these situations on a case-by-case basis. Where necessary, EPA will make a good cause finding to justify emergency rulemaking. See APA section 553 (b)(3)(B).

EPA is also adding paragraph (7), Notification Requirements. The treatment facility is required to notify State environmental agencies at least 60 days before beginning the transport and disposal of delisted wastes. This notification would be require for the state where the treated waste is generated as well as states through which the waste is transported and disposed.

Statutory and Executive Order Reviews

Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this rule is not of general applicability and therefore is not a regulatory action subject to review by the Office of Management and Budget (OMB). This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a particular facility only. Because this rule is of particular applicability relating to a particular facility, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because this rule will affect only a particular facility, it will not significantly or uniquely affect small governments, as specified in section 203 of UMRA. Because this rule will affect only a particular facility, this proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism,” (64 FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply to this rule. Similarly, because this rule will affect only a particular facility, this proposed rule does not have tribal implications, as specified in Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). Thus, Executive Order 13175 does not apply to this rule. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The basis for this belief is that the Agency used the DRAS program, which considers health and safety risks to infants and children, to calculate the maximum allowable concentrations for this rule. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866. This rule does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988, “Civil Justice Reform,” (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report which includes a copy of the rule to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding this action under section 801 because this is a rule of particular applicability.

Lists of Subjects in 40 CFR Part 261

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

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

Dated: August 29, 2008.

Bill Luthans,

Acting Director, Multimedia Planning and Permitting Division, EPA Region 6.

For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations 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. Appendix IX to Part 261, Table 2—Wastes Excluded from Specific Sources is amended by adding the following entry in alphabetical order to “Conversion Systems Inc.,” to read as follows:

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

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Table 2—Wastes Excluded From Specific Sources

Facility	Address	Waste description
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Conversion Systems, Inc	Willow Grove, PA	Chemically Stabilized Electric Arc Furnace Dust (CSEAFD) that is generated by Conversion Systems Inc. (CSI) using the Super DetoxTM process as modified by CSI to treat EAFD (EPA Hazardous Waste No. K061) at the following sites and that is disposed of in Subtitle C landfills:
		Northwestern Steel, Sterling, Illinois after June 13, 1995.
		Structural Metals, Inc. treated at U.S. Ecology, Robstown, Texas after September 23, 2008.
		(1) Verification Testing Requirements: Sample collection and analyses, including quality control procedures must be performed using appropriate methods. As applicable to the method-defined parameters of concern, analyses requiring the use of SW-846 methods incorporated by reference in 40 CFR 260.11 must be used without substitution. As applicable, the SW-846 methods might include Methods 0010, 0011, 0020, 0023A, 0030, 0031, 0040, 0050, 0051, 0060, 0061, 1010A, 1020B, 1110A, 1310B, 1311, 1312, 1320, 1330A, 9010C, 9012B, 9040C, 9045D, 9060A, 9070A (uses EPA Method 1664, Rev. A), 9071B, and 9095B.
		(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 this 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. The composite samples must be composed representative samples collected from all batches treated in each month. These monthly representative samples must be analyzed, prior to 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 non-hazardous.
		(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 managed and 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 constituents 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-1.00; Selenium-0.16; Silver-0.30; Thallium-0.020; Vanadium-2.0; 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 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 generated from the new process as non-hazardous, if the wastes meet the delisting levels set in Condition (3).
		(5) Data Submittals: CSI must submit the information described below. If CSI fails to submit the required data within the specified time or maintain the required records on-site for the specified time, EPA, at its discretion, will consider this sufficient basis to reopen the exclusion as described in paragraph (6). CSI must:
		(A) At least one month prior to operation of a new Super DetoxTM treatment facility, CSI must notify, in writing, the EPA Regional Administrator or his designee, when the new Super DetoxTM treatment facility is scheduled to be on-line. The data obtained through paragraph 1(A) must be submitted to the Regional Administrator or his designee within the time period specified. All supporting data can be submitted on CD-ROM or some comparable electronic media.
		(B) CSI shall submit and receive EPA approval of the Quality Assurance Project Plan for data collection for each new facility added to this exclusion prior to conducting sampling events in paragraph 1(A).
		(C) Compile records of analytical data from paragraph (3), summarized, and maintained on-site for a minimum of five years.
		(D) Furnish these records and data when either EPA or the State agency requests them for inspection.
		(E) Send along with all data 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. If 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.”
		(6) Reopener: (A) If, anytime after disposal of the delisted waste CSI, the treatment facility, or the steel mill possess or is otherwise made aware of any data (including but not limited to leachate data or ground water monitoring data) relevant to the delisted waste indicating that any constituent identified for the delisting verification testing is at a level higher than the delisting level allowed by EPA in granting the petition, then the facility must report the data, in writing, to EPA within 10 days of first possessing or being made aware of that data.
		(B) If subsequent verification testing of the waste as required by paragraph 1(C) does not meet the delisting requirements in paragraph 3 and the waste is subsequently managed as non-hazardous waste, CSI must report the data, in writing, to EPA within 10 days of first possessing or being made aware of that data.
		(C) If CSI fails to submit the information described in paragraphs (5), (6)(A) or (6)(B) or if any other information is received from any source, EPA will make a preliminary determination as to whether the reported information requires action to protect human health and/or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate response necessary to protect human health and the environment.
		(D) If EPA determines that the reported information requires action, EPA will notify the facility in writing of the actions it believes are necessary to protect human health and the environment. The notice shall include a statement of the proposed action and a statement providing the facility with an opportunity to present information explaining why the proposed EPA action is not necessary. The facility shall have 10 days from the date of EPA's notice to present such information.
		(E) Following the receipt of information from the facility described in paragraph (6)(D) or (if no information is presented under paragraph (6)(D)) the initial receipt of information described in paragraphs (5), (6)(A) or (6)(B), EPA will issue a final written determination describing the actions that are necessary to protect human health and/or the environment. Any required action described in EPA's determination shall become effective immediately, unless EPA provides otherwise.
		(7) Notification Requirements: CSI or the treatment facility must do the following before transporting the delisted waste. Failure to provide this notification will result in a violation of the delisting petition and a possible revocation of the decision.
		(A) Provide a one-time written notification to any state Regulatory Agency to which or through which it will transport the delisted waste described above for disposal, 60 days before beginning such activities.
		(B) Update the one-time written notification if it ships the delisted waste into a different disposal facility.
		(C) Failure to provide this notification will result in a violation of the delisting exclusion and a possible revocation of the decision.
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