[Federal Register Volume 61, Number 171 (Tuesday, September 3, 1996)]
[Rules and Regulations]
[Pages 46380-46384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22377]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-5602-6]
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) today is granting a
petition submitted by Giant Refining Company (Giant) to exclude from
hazardous waste control (delist) certain solid wastes. The wastes being
delisted consist of excavated soils contaminated with K051 currently
being stored in an on-site waste pile. This action responds to Giant's
petition to delist these wastes on a one-time basis from the hazardous
waste lists. After careful analysis, EPA has concluded that the
petitioned waste is not hazardous waste when disposed of in Subtitle D
landfills. This exclusion applies only to excavated soils generated at
Giant's Bloomfield, New Mexico facility. 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.
EFFECTIVE DATE: September 3, 1996.
ADDRESSES: The public docket for this final rule is located at the
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas,
Texas 75202, and is available for viewing in the EPA Library of the
12th floor from 9:00 a.m. to 4:00 p.m., Monday through Friday,
excluding Federal holidays. Call (214) 665-6444 for appointments. The
reference number for this docket is ``F-96-NMDEL-GIANT.'' 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 and technical information
concerning this document, contact Michelle Peace, Environmental
Protection Agency, 1445 Ross Avenue, Dallas, Texas, (214) 665-7430.
SUPPLEMENTARY INFORMATION:
I. Background
A. Authority
Under 40 CFR 260.20 and 260.22, facilities may petition EPA to
remove their wastes from hazardous waste control by excluding them from
the lists
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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 EPA 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/she 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
Giant petitioned EPA to exclude from hazardous waste control the
excavated soils contaminated with K051-API separator sludge waste
presently stored in an on-site waste pile at Bloomfield, New Mexico
facility. After evaluating the petition, EPA proposed, on May 20, 1996
to exclude Giant's waste from the lists of hazardous wastes under
Secs. 261.31 and 261.32 (See 61 FR 25175). This rulemaking addresses
public comments received on the proposal and finalizes the proposed
decision to grant Giant's petition.
II. Disposition of Petition
Giant Refining Company, Bloomfield, New Mexico
A. Proposed Exclusion
Giant petitioned EPA to exclude from the lists of hazardous wastes
contained in 40 CFR 261.31 and 261.32, a discrete volume of
contaminated soil excavated from its wastewater treatment impoundments.
Specifically, in its petition, Giant requested that EPA grant a one-
time exclusion for 2,000 cubic yards of excavated soil presently stored
in an on-site waste pile. The soil is classified as EPA Hazardous Waste
No. K051--``API separator sludge from the petroleum refining
industry.'' The listed constituents of concern for EPA Hazardous Waste
No. K051 are hexavalent chromium and lead (see Part 261, Appendix VII).
Giant petitioned the EPA to exclude this discrete volume of excavated
soil because it does not believe that the waste meets the criteria for
which it was listed. Giant also believes that the waste does not
contain any other constituents that would render it hazardous. Review
of this petition included consideration of the original listing
criteria, as well as the additional factors required by the Hazardous
and Solid Waste Amendments (HSWA) of 1984. See Section 222 of HSWA, 42
U.S.C. 6921(f), and 40 CFR 260.22(d) (2)-(4).
In support of its petition, Giant submitted: (1) descriptions of
its wastewater treatment processes and the excavation activities
associated with the petitioned waste; (2) results from total
constituent analyses for the eight Toxicity Characteristic (TC) metals
listed in Sec. 261.24 (i.e., the TC metals) antimony, beryllium,
cyanide, nickel, vanadium, and zinc from representative samples of the
stockpiled waste; (3) results from the Toxicity Characteristic Leaching
Procedure (TCLP, SW-846 Method 1311) for the eight TC metals, antimony,
beryllium, cyanide, nickel, vanadium, and zinc from representative
samples of the stockpiled waste; (4) results from the Oily Waste
Extraction Procedure (OWEP, SW-846 Method 1330) for the eight TC
metals, antimony, beryllium, nickel, vanadium, and zinc from
representative samples of the stockpiled waste; (5) results from the
Extraction Procedure Toxicity Test (EP, SW-846 Method 1310) for the
eight metals listed in Sec. 261.24 from representative samples of the
stockpiled waste; (6) results from total oil and grease analyses from
representative samples of the stockpiled waste; (7) test results and
information regarding the hazardous characteristics of ignitability,
corrosivity, and reactivity; and (8) results from total constituent and
TCLP analyses for certain volatile and semi-volatile organic compounds
from representative samples of the stockpiled waste.
B. Summary of Responses to Public Comments
The EPA received public comment on the May 20, 1996, proposal from
two interested parties, the American Zinc Association (AZA) and
Horsehead Resource Development Company (HRD). The comments consisted of
the concern that zinc is incorrectly viewed as a hazardous constituent
to which the EPA Composite Model for Landfills (EPACML) must be applied
and the need to evaluate delisting decisions in relation to the
Pollution Prevention Act and the Land Disposal Restrictions.
Classification of Zinc as a Hazardous Constituent
Comment: The AZA is concerned that, for some reason, EPA in
connection with the delisting petition filed by Giant Refining Company
appears to view zinc as a ``hazardous constituent'' to which the EPACML
must be applied. The AZA contends that zinc is not considered a
``hazardous constituent'' as defined under RCRA, is not listed on
Appendix VIII to 40 CFR Part 261 and is specifically excluded from the
definition of ``underlying hazardous constituents'' in 40 CFR 268.2
(i). The AZA requests that the final rule be changed to exclude zinc.
Response: The criteria for making a successful petition to amend
Part 261 to exclude a waste produced at a particular facility can be
found in 40 CFR Part 260.22. The regulations in 40 CFR Part
260.22(a)(2) states that based on a complete application, the
Administrator must determine where there is 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.
The EPA understands the AZA's concern regarding implication that
zinc is being viewed as a ``hazardous constituent'' in this delisting
petition. In response to this concern, EPA will revise the preamble
language to future rulemakings to read that `` the EPACML will be used
to predict the concentrations of constituents that may be released from
the petitioned waste, once it is disposed.'' To evaluate delisting
petitions, any constituent detected in the leachate of the petitioned
waste must be evaluated by the EPACML. All organic and inorganic
constituents detected in the leachate of a petitioned waste are
evaluated for their potential hazard to human health and the
environment. Zinc, while it may not meet the definitions of hazardous
constituent or ``underlying hazardous constituent'' as defined under
the Land Disposal Restrictions, is a constituent found in Giant
Refining's waste and moreover, in the leachate of the petitioned waste.
Therefore, to meet the delisting criteria, zinc must be evaluated to
determine if as a result of leaching into the groundwater the
concentration of zinc would pose a hazard to human health or the
environment.
In the analysis of the leachate from Giant's waste, levels of zinc
were detected and the maximum value is reported on the list of
inorganic constituents found in Table 1 of the May 20, 1996, notice.
The evaluation of zinc as an ``additional constituent'' is conducted
and compared to its health-based value and the secondary drinking water
regulations to determine whether the levels of zinc detected could
cause
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the waste to be a potential hazard. In the case of Giant's waste, the
value for zinc is below the level of regulatory concern and should not
present a hazard to human health or the environment.
Impact of This Delisting Upon Recycling of K051
Comment: The commenter did not object to the proposed decision to
delist Giant's waste, since the constituent levels in the waste were
low enough that HRD did not feel that any statutory mandates were
violated. The commenter summarized two principal statutory requirements
that HRD feels must be accounted for in order for any delisting
decision to be valid:
(a) The Pollution Prevention Act of 1990 established a hierarchy of
waste management methods, in order of decreasing preference as: (1)
source reduction, (2) recycling, (3) treatment, and (4) land disposal.
The commenter emphasized that recycling, such as high temperature metal
recovery, is favored over waste treatment methods, such as
stabilization. The commenter also stated that the low levels of metals
in the petitioned waste were not amenable to recycling; and
(b) The Land Disposal Restrictions (LDR) of RCRA include stringent
treatment standards which must be met prior to land disposal of
hazardous wastes. The commenter felt that LDR treatment standards
should be one of the ``factors (including additional constituents)
other than those for which the waste was listed'' that could cause the
waste to be a hazardous waste or to be retained as a hazardous waste
(see 40 CFR 260.22(d)(2)). Again, the commenter did not feel that the
constituent levels in the petitioned waste were high enough to exceed
LDR treatment standards.
Response: The EPA agrees with the commenter that the statutory
mandates summarized above are very important considerations. The EPA
also agrees that the decision to delist the waste which is the subject
of this final rule is not in conflict with either of these mandates. It
is also EPA's position that if the evaluation of a delisting petition
reveals that the petitioned waste meets all the appropriate criteria in
Petitions to Delist Hazardous Wastes--A Guidance Manual, Second
Edition, EPA Publication No. EPA/530-R-93-007, March 1993, the
conditions specified in 40 CFR 260.22(d)(2) have been met, and the
waste need not be subject to RCRA Subtitle C. That is to say, the
delisting levels established by EPA are protective of human health and
the environment, and a waste that meets these levels does not have
factors that ``could cause the waste to be a hazardous waste.'' Many
LDR treatment standards are concentration levels below those that would
be protective of human health and the environment, because they are
based on what is technologically achievable, rather than on risk.
The EPA has responded, in an earlier rulemaking, to similar comment
by HRD concerning the effect that delisting stabilized wastes might
have on the recycling of wastes to recover metals (see 60 FR 31109,
June 13, 1995). The EPA's position continues to be that no policies are
undermined nor regulations violated by the delisting of a waste which
meets all applicable criteria for delisting. Specifically, the
existence of an alternate treatment and/or recycling technology is not
a factor that ``could cause the waste to be a hazardous waste.''
C. Final Agency Decision
For reasons stated in both the proposal and this document, EPA
believes that Giant's excavated soil should be excluded from hazardous
waste control. The EPA, therefore, is granting a final exclusion to
Giant Refining Company, Bloomfield, New Mexico for its 2,000 cubic
yards of excavated soil, described in its petition as EPA Hazardous
Waste No. K051. This exclusion only applies to the waste described in
the petition. The maximum volume of contaminated soil covered by this
exclusion is 2,000 cubic yards.
Although management of the waste covered by this petition is
relieved from Subtitle C jurisdiction, the generator of the delisted
waste must either treat, store, or dispose of the waste in an on-site
facility, or ensure that the waste is delivered to an off-site storage,
treatment, or disposal facility, either of which is permitted, licensed
or registered by a State to manage municipal or industrial solid waste.
Alternatively, the delisted waste may be delivered to a facility that
beneficially uses or reuses, or legitimately recycles or reclaims the
waste, or treats the waste prior to such beneficial use, reuse,
recycling, or reclamation (see 40 CFR part 260, Appendix I).
III. Limited Effect of Federal Exclusion
The final exclusion being granted today is issued under the Federal
(RCRA) delisting program. States, however, are allowed to impose their
own, non-RCRA regulatory requirements that are more stringent than
EPA's, pursuant to section 3009 of RCRA. These more stringent
requirements may include a provision which prohibits a Federally-issued
exclusion from taking effect in the 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 the State
regulatory authority to determine the current status of their wastes
under the State law.
Furthermore, some States (e.g., Louisiana, 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
waste will be transported to and managed in any State with delisting
authorization, Giant must obtain delisting authorization from that
State before the waste can be managed as non-hazardous in the State.
IV. Effective Date
This rule is effective September 3, 1996. The Hazardous and Solid
Waste Amendments of 1984 amended Section 3010 of RCRA to allow rules to
become effective in less than six months when the regulated community
does not need the six-month period to come into compliance. That is the
case here because this rule reduces, rather than increases, the
existing requirements for persons generating hazardous wastes. 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 EPA's 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. Secs. 601-612,
whenever an agency is required to publish a general
[[Page 46383]]
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 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. The
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. The EPA finds that today's
delisting decision is deregulatory in nature and does not impose any
enforceable duty on any State, local, or tribal governments or the
private sector. In addition, today's delisting decision does not
establish any regulatory requirements for small governments and so does
not require a small government agency plan under UMRA section 203.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: August 21, 1996.
Jane N. Saginaw,
Regional Administrator.
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 waste
stream in alphabetical order by facility to read as follows:
Appendix IX--Wastes Excluded Under Secs. 260.20 and 260.22
Table 2.--Wastes Excluded From Specific Sources
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Facility Address Waste description
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* * * * * *
*
Giant Refining Company, Inc. Bloomfield, New Mexico.................. Waste generated during the excavation of
soils from two wastewater treatment
impoundments (referred to as the South
and North Oily Water Ponds) used to
contain water outflow from an API
separator (EPA Hazardous Waste No.
K051). This is a one-time exclusion for
approximately 2,000 cubic yards of
stockpiled waste. This exclusion was
published on September 3, 1996.
Notification Requirements: Giant
Refining Company must provide a one-
time written notification to any State
Regulatory Agency to which or through
which the delisted waste described
above will be transported for disposal
at least 60 days prior to the
commencement of such activities.
Failure to provide such a notification
will result in a violation of the
delisting petition and a possible
revocation of the decision.
* * * * * *
*
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[FR Doc. 96-22377 Filed 8-30-96; 8:45 am]
BILLING CODE 6560-50-P