[Federal Register Volume 61, Number 180 (Monday, September 16, 1996)]
[Rules and Regulations]
[Pages 48635-48638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23657]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261

[SW-FRL-5608-9]


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 Bekaert Steel Corporation (Bekaert) of Rogers, 
Arkansas, to exclude from hazardous waste control (or delist) certain 
solid wastes generated at its facility. This action responds to 
Bekaert's petition to delist these wastes under those regulations that 
allow any person to petition the Administrator to modify or revoke any 
provision of certain hazardous waste regulations of the Code of Federal 
Regulations, and specifically provide generators the opportunity to 
petition the Administrator to exclude a waste on a ``generator-
specific'' 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 wastewater treatment sludge generated from electroplating 
operations at Bekaert's Rogers, Arkansas, 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 16, 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-ARDEL-BEKAERT'' 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 notice, contact David Vogler, Environmental Protection 
Agency, 1445 Ross Avenue, Dallas, Texas, (214) 665-7428.

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 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

[[Page 48636]]

waste to be a hazardous waste, that such factors do not warrant 
retaining the waste as a hazardous waste.

B. History of this Rulemaking

    Bekaert petitioned EPA to exclude from hazardous waste control the 
its filter cake resulting from the treatment of wastewaters originating 
from its electroplating operations at the Rogers, Arkansas, facility. 
After evaluating the petition, EPA proposed, on June 25, 1996, to 
exclude Bekaert's waste from the lists of hazardous wastes under 
Secs. 261.31 and 261.32. See 61 FR 32746. This rulemaking addresses 
public comments received on the proposal and finalizes the proposed 
decision to grant Bekaert's petition.

II. Disposition of Petition

    Bekaert Steel Corporation, Rogers, Arkansas

A. Proposed Exclusion

    Bekaert petitioned the EPA to exclude from the lists of hazardous 
wastes contained in 40 CFR Sec. 261.31 and 261.32, its wastewater 
treatment sludges form its electroplating operations. Specifically, in 
its petition, Bekaert petitioned the Agency to exclude its wastewater 
treatment filter cake presently listed as EPA Hazardous Waste No. 
F006--``Wastewater treatment sludges from electroplating operations 
except from the following processes: (1) Sulfuric acid anodizing of 
aluminum; (2) tin plating on carbon steel; (3) zinc plating (segregated 
basis) on carbon steel; (5) cleaning/stripping associated with tin, 
zinc, and aluminum plating on carbon steel; and (6) chemical etching 
and milling of aluminum.'' The listed constituents of concern for EPA 
Hazardous Waste No. F006 are: cadmium, hexavalent chromium, nickel and 
cyanide (complexed). See 40 CFR part 261, Appendix VII. Bekaert 
petitioned the EPA to exclude this waste because it does not believe 
that the waste meets the criteria for which it was listed. Bekaert 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) through (4).
    In support of its petition, Bekaert submitted: (1) Descriptions of 
its manufacturing and wastewater treatment processes, including 
schematic diagrams; (2) a list of all raw materials and Material Safety 
Data Sheets (MSDSs) for all trade name products used in the 
manufacturing and waste treatment processes; (3) results from total 
constituent analyses for fourteen metals including the eight Toxicity 
Characteristic (TC) metals listed in Sec. 261.24 (i.e., the TC metals) 
and antimony, beryllium, copper, nickel, thallium, and zinc from 
representative samples of the petitioned waste; (4) results from the 
Toxicity Characteristic Leaching Procedure (TCLP, SW-846 Method 1311) 
for fourteen metals which include the eight TC metals, and antimony, 
beryllium, copper, nickel, thallium, and zinc from representative 
samples of the petitioned waste; (5) results from total constituent 
analysis for total and reactive sulfide and cyanide for representative 
samples of the petitioned waste; (6) results from total oil and grease 
analyses from representative samples of the petitioned waste; (7) test 
results and information regarding the hazardous characteristics of 
ignitability, corrosivity, and reactivity; and (8) results from total 
constituent analyses for certain volatile and semi-volatile organic 
compounds from representative samples of the petitioned waste.

B. Summary of Responses to Public Comments

    The EPA received public comment on the June 25, 1996, proposal from 
one interested party, the American Zinc Association (AZA).
Classification of Zinc as a Hazardous Constituent
    Comment: The AZA is concerned that EPA, in connection with the 
delisting petition filed by Bekaert Steel Corporation, appears to view 
zinc as a `` hazardous constituent'' to which the EPA Composite for 
Model Landfills (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) state 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; and 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 ``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 Bekaert 
Steel'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 significant hazard to human health 
or the environment.
    In the analysis of the leachate from Bekaert'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 June 25, 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 the waste to be a potential hazard. In the case of Bekaert'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.

C. Final Agency Decision

    For reasons stated in both the proposal and this notice, EPA 
believes that Bekaert's petitioned waste should be excluded from 
hazardous waste control. The EPA, therefore, is granting a final 
exclusion to Bekaert Steel Corporation, located in Rogers, Arkansas, 
for a maximum annual rate 1,250 cubic yards of waste to be measured on 
a calendar year basis, described in its petition as EPA Hazardous Waste 
No. F006. This exclusion only applies to the waste described in the 
petition.
    Although management of the waste covered by this petition is 
relieved from

[[Page 48637]]

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, Bekaert 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 16, 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 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), P.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.

Lists of Subjects in 40 CFR Part 261

    Hazardous Waste, Recycling, Reporting and recordkeeping 
requirements.

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

    Dated: September 3, 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.


[[Page 48638]]


    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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                                                  * * * * * * *                                                 
Bekaert Steel Corporation.................  Rogers, Arkansas..........................  Wastewater treatment    
                                                                                         sludge (EPA Hazardous  
                                                                                         Waste No. F006)        
                                                                                         generated from         
                                                                                         electroplating         
                                                                                         operations (at a       
                                                                                         maximum annual rate of 
                                                                                         1250 cubic yards to be 
                                                                                         measured on a calendar 
                                                                                         year basis) after      
                                                                                         [insert publication    
                                                                                         date of the final      
                                                                                         rule]. In order to     
                                                                                         confirm that the       
                                                                                         characteristics of the 
                                                                                         waste do not change    
                                                                                         significantly, the     
                                                                                         facility must, on an   
                                                                                         annual basis, before   
                                                                                         July 1 of each year,   
                                                                                         analyze a              
                                                                                         representative         
                                                                                         composite sample for   
                                                                                         the constituents listed
                                                                                         in Sec.  261.24 as well
                                                                                         as antimony, copper,   
                                                                                         nickel, and zinc using 
                                                                                         the method specified   
                                                                                         therein. The annual    
                                                                                         analytical results,    
                                                                                         including quality      
                                                                                         control information,   
                                                                                         must be compiled,      
                                                                                         certified according to 
                                                                                         Sec.  260.22(i)(12) of 
                                                                                         this chapter,          
                                                                                         maintained on site for 
                                                                                         a minimum of five      
                                                                                         years, and made        
                                                                                         available for          
                                                                                         inspection upon request
                                                                                         of any employee or     
                                                                                         representative of EPA  
                                                                                         or the State of        
                                                                                         Arkansas. Failure to   
                                                                                         maintain the required  
                                                                                         documents on site will 
                                                                                         be considered by EPA,  
                                                                                         at its discretion,     
                                                                                         sufficient basis to    
                                                                                         revoke the exclusion to
                                                                                         the extent directed by 
                                                                                         EPA.                   
                                                                                                                
                                                                                                                
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[FR Doc. 96-23657 Filed 9-13-96; 8:45 am]
BILLING CODE 6560-50-P