[Federal Register Volume 64, Number 38 (Friday, February 26, 1999)]
[Rules and Regulations]
[Pages 9437-9445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4830]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-6305-2]


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Final Exclusion

AGENCY: Environmental Protection Agency (EPA).


[[Page 9438]]


ACTION: Final rule.

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SUMMARY: The EPA today is granting a petition submitted by McDonnell 
Douglas Corporation (McDonnell Douglas) of Tulsa, Oklahoma, to exclude 
from hazardous waste control (or delist) certain solid wastes generated 
at its U.S. Air Force Plant No. 3 facility. This action responds to 
McDonnell Douglas' 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 stabilized wastewater treatment sludge. The 
sludges were previously generated from the chemical conversion coating 
of aluminum operations at McDonnell Douglas' Tulsa, Oklahoma facility. 
The sludges were disposed of in surface impoundments which were then 
closed as a single Resource Conservation and Recovery Act (RCRA) 
landfill. The facility plans to excavate the waste from the city 
airport site and dispose of it offsite in a Subtitle D landfill. 
Accordingly, this final rule excludes the petitioned waste from the 
requirements of hazardous waste regulations under RCRA when disposed of 
in Subtitle D landfills.

EFFECTIVE DATE: February 26, 1999.

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 Freedom of 
Information Act Reading Room of the 7th floor from 8:30 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-
98-OKDEL-AIRFORCEPLANT3.'' 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 (6PD-O), Environmental 
Protection Agency, 1445 Ross Avenue, Dallas, Texas, 75202-2733, (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 40 CFR; 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

    McDonnell Douglas petitioned EPA to exclude from hazardous waste 
control its stabilized waste resulting from the treatment of waste 
waters originating from its chemical conversion coating of aluminum 
operations at the Tulsa, Oklahoma facility and disposed of in surface 
impoundments which have been closed as a single RCRA landfill. After 
evaluating the petition, EPA proposed, on July 14, 1998, to exclude 
McDonnell Douglas' waste from the lists of hazardous wastes under 
Secs. 261.31 and 261.32. See 63 FR 37797. This rulemaking addresses 
public comments received on the proposal and finalizes the decision to 
grant McDonnell Douglas' petition.

II. Disposition of Petition

    McDonnell Douglas Corporation, Tulsa, Oklahoma

A. Proposed Exclusion

    McDonnell Douglas petitioned the EPA to exclude from the lists of 
hazardous wastes contained in 40 CFR 261.31 and 261.32, its wastewater 
treatment sludges from its chemical conversion coating of aluminum 
operations. These sludges were disposed of in surface impoundments and 
then later stabilized as part of the process of closing the 
impoundments as a single RCRA landfill. McDonnell Douglas Corporation, 
located in Tulsa, Oklahoma, petitioned for the exclusion for a maximum 
volume of 85,000 cubic yards of stabilized waste, described in its 
petition as EPA Hazardous Waste No. F019 with minor amounts of F002, 
F003, and F005. Approximately 5000 cubic yards of the total waste 
volume will consist of about 2500 cubic yards of unstabilized waste 
(presently located in the bottom portion of the northwest section of 
the closed surface impoundments) mixed with about 2500 cubic yards of 
materials to stabilize the waste. This exclusion only applies to the 
wastes as described in the petition.
    Specifically, in its petition, McDonnell Douglas petitioned the 
Agency to exclude its waste presently listed as EPA Hazardous Waste No. 
F019--``Wastewater treatment sludges from the chemical conversion 
coating of aluminum except from zirconium phosphating in aluminum can 
washing when such phosphating is an exclusive conversion coating 
process.'' The petitioned wastes are believed to also have very small 
amounts of wastes presently classified as F002, F003, and F005. The 
listed constituents of concern for these waste codes are listed in 
Table 1. See 40 CFR part 261, Appendix VII.

   Table 1.--Hazardous Waste Codes Associated With Wastewater Streams
------------------------------------------------------------------------
          Waste code               Basis for characteristics/listing
------------------------------------------------------------------------
F019.........................  Hexavalent Chromium. Cyanide (complexed).
F002.........................  Tetrachloroethylene, trichloroethylene,
                                methylene chloride, 1,1,1-
                                trichloroethane, 1,1,2-trichloroethane,
                                chlorobenzene, 1,1,2-trichloro-1,2,2-
                                trifluoroethane, ortho-dichlorobenzene,
                                trichlorofluoromethane.
F003.........................  Xylene, acetone, ethyl acetate, ethyl
                                benzene, ethyl ether, methyl isobutyl
                                ketone, n-butyl alcohol, cyclohexanone,
                                methanol.
F005.........................  Toluene, methyl ethyl ketone, carbon
                                disulfide, isobutanol, pyridine,
                                benzene, 2-ethoxyethanol, 2-
                                nitropropane.
------------------------------------------------------------------------


[[Page 9439]]

    McDonnell Douglas petitioned the EPA to exclude this waste because 
it does not believe that the stabilized waste disposed of in a single 
RCRA landfill meets the criteria for which it was listed. McDonnell 
Douglas 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 RCRA Sec. 3001(f)(1).
    In support of its petition, McDonnell Douglas submitted: (1) 
descriptions of its wastewater treatment processes and the activities 
associated with petitioned wastes; (2) results of the total constituent 
list for 40 CFR 264 Appendix IX volatiles, semivolatiles, metals, 
pesticides, herbicides, polychlorinated biphenyls, furans, and dioxins; 
(3) results of the constituent list for Appendix IX on Toxicity 
Characteristic Leaching Procedure (TCLP) extract for identified 
constituents; (4) results for total sulfide; (5) results for total 
cyanide; (6) results for pH; (7) results of the Multiple Extraction 
Procedure (MEP) for acidic, neutral, and basic extractions; (8) results 
of ground water monitoring; and (9) results of surface impoundment 
waste analysis for constituents of concern.

B. Summary of Responses to Public Comments

    The EPA received public comments on the proposed notice published 
on July 14, 1998, from the Environmental Defense Fund (EDF), Earth 
Concerns of Oklahoma (EOC), and the Oklahoma Chapter of the Sierra Club 
(OCSC) as joint commenters.
Applicability of the Land Disposal Restriction (LDR) Requirements
    Comment: The EDF, EOC, and OCSC (commenters) assert that 
``McDonnell Douglas seeks authorization to excavate the 85,000 cubic 
yards of landfilled waste, stabilizing with fly ash or cement kiln dust 
the previously untreated waste, and disposing of the treated waste in a 
nonhazardous waste lanfill. However, it is well established this act of 
excavation constitutes waste generation, and thereby triggers all 
applicable hazardous waste requirements including treatment prior to 
land disposal.''
    Response: The EPA disagrees with the commenters suggestion that the 
petitioned waste once excavated would be subject to land disposal 
restrictions and associated treatment standards. According to EPA 
records and documents submitted by the facility, the petitioned waste 
was last land disposed on or before July of 1988, prior to the 
effective date of an applicable land disposal prohibition. Because the 
waste will be delisted before being excavated from the landfill (i.e., 
re-generated) there will be no hazardous waste to which a land disposal 
prohibition could attach once the waste is excavated, and therefore, 
the petitioned waste will not be subject to LDRs and does not have to 
meet the Land Disposal Restrictions (LDRs) treatment standards before 
being land disposed. See 63 FR 28617-8, May 26, 1998.
    The EPA evaluated the waste and the low health-based risk indicated 
that the waste did not need to be handled as a hazardous waste. The 
waste will still be considered a solid waste and managed as such under 
applicable state regulations.
    Comment: Regarding the untreated waste, the commenters contend that 
``EPA never addressed the application of treatment standards to organic 
constituents nor did EPA evaluate whether the organic contaminants in 
the sludge are legitimately treated using fly ash, much less utilize 
the LDR variance process as contemplated under existing Agency 
policy.''
    Response: The EPA did not address the application of LDR treatment 
standards to the untreated waste because it will be stabilized with fly 
ash or cement kiln dust prior to excavation. Consolidation and in situ 
treatment (or stabilization) of hazardous waste within an area of 
contamination do not create a new point of hazardous waste generation 
triggering land disposal restrictions. See October 14, 1998 memorandum, 
``Management of Remediation Waste Under RCRA,'' Publication No. EP530-
F-98-026, and sources cited therein. See 63 FR 28617 and 28620, May 26, 
1998. Assuming the newly treated waste meets the delisting levels and 
all other delisting conditions prior to the point of waste 
regeneration, the newly treated waste will be delisted. Therefore, 
there will be no hazardous waste to which a land disposal prohibition 
can attach and land disposal treatment standards would not apply and a 
treatment variance is not necessary. The EPA determined that analytical 
results from twenty samples representing the stabilized waste indicated 
that the stabilization process had worked to reduce the concentrations 
of hazardous constituents to below levels of health-based concern. See 
63 FR 37802, July 14, 1998.
    Trichloroethylene, a constituent of concern to the commenters was 
not detected in the leachate analysis of the previously stabilized 
sludge. Three other organic constituents of concern to the commenters 
were detected sporadically in the twenty-one samples analyzed for 
leachate concentrations. The leachate concentration values that were 
detected are as follows: ethylbenzene (0.004, 0.004, 0.003, 0.002 mg/
l), toluene (0.014, 0.033, 0.006, 0.019, 0.035, 0.015, 0.009 mg/l), and 
xylenes (0.017, 0.019, 0.012,0.007, 0.011 mg/l). However, these values 
are below drinking water Maximum Concentration Levels (MCLs) even 
before the 95 percent Upper Confidence Limit (UCL) was calculated or a 
Dilution Attenuation Factor (DAF) was applied indicating that the 
values are well below health-based concerns. It should be noted that 
these values are also very minimal concentrations.
    Since analysis of the portion of the waste that had been stabilized 
using flyash indicated that the process had significantly reduced the 
concentrations and mobility of the hazardous constituents, it was 
considered demonstrated that the unstabilized sludges in the surface 
impoundments which had been closed in place as a landfill could also 
achieve similar levels. If delisting levels cannot be attained and the 
waste is placed in another land disposal unit, then the delisting 
states that the waste would be considered a hazardous waste and must be 
managed as such.
    Comment: The commenters contend that the use of evaporation and/or 
dilution techniques to achieve compliance with land disposal treatment 
standards are not authorized under RCRA or EPA regulations.
    Response: As stated earlier, land disposal restrictions do not 
apply in this situation and therefore, land disposal treatment 
standards do not apply also. However, EPA agrees with commenters that 
the organic contaminants do evaporate and some dilution does occur 
during the stabilization process for which the RCRA unit was authorized 
under a RCRA closure plan. In cases where wastes are left in-place, it 
is commonly authorized to stabilize sludges in this manner. Under a 
RCRA closure plan, which is subject to approval by the Oklahoma 
Department of Environmental Quality, protection of human health and the 
environment would be a major consideration. Also, under the rules of 
the Occupational Safety and Health Authority (OSHA) and under a RCRA 
closure plan, McDonnell Douglas is subject to meet the worker safety 
requirements.
    In considering this particular delisting case, only three samples 
of five located in one small area show concentrations of total 
Trichloroethylene (<0.005,

[[Page 9440]]

<0.005, 110, 166, and 1090 mg/kg), a constituent of concern to the 
commenters. The corresponding TCLP leachate values are <0.1, ,0.1, 0.8, 
0.9, and 17.3 mg/l. Outside of this area, Trichloroethylene was not 
detected. Considering the small amount of waste in the small area and 
the short duration of time for stabilization within the unit of the 
waste along with other site conditions, the qualitative risk to the 
public appears to be minimal.
    After consideration of the concerns of the commenters, EPA is 
adding two new conditions to the conditional delisting of the 
unstabilized sludges found in the bottom of the northwest section of 
the surface impoundments which have been closed as a landfill. 
McDonnell Douglas Corporation will be required to control volatile 
emissions from the stabilization process by collection of the volatile 
chemicals as they are emitted from the waste but before release to the 
ambient air. The facility will also be required to use adequate dust 
control measures.

    McDonnell Douglas Corporation shall control volatile emissions 
from the stabilization process by collection of the volatile 
chemicals as they are emitted from the waste but before release to 
the ambient air and the facility shall use dust control measures. 
These two controls must be adequate to protect human health and the 
environment.

    These two additional conditions will prevent cross-media transfer 
and provide more definitive protection to the public and onsite 
workers. These two conditions would normally be considered under a new 
RCRA closure (by removal) plan and under OSHA regulations but are also 
being addressed herein.
    The delisting of the approximately 2500 cubic yards of unstabilized 
sludge in this area is limited to 5000 total cubic yards of stabilized 
waste after the materials used in the stabilization process (about 2500 
cubic yards) are added. Therefore, the maximum allowable 1-to-1 
dilution is not considered a major factor. The materials used to 
stabilize the waste raises the pH of the combined materials to a basic 
level which lowers the leachate concentrations of metals as confirmed 
by the MEP tests. The mixing of the materials in the stabilization 
process volatilizes the organic constituents which are then collected 
before entering the ambient air. A 1-to-1 dilution would not reduce the 
present detected TCLP concentrations (0.8, 0.9, and 17.3 mg/l TCLP) to 
below the delisting limit for the Trichloroethylene which is calculated 
at a value of .280 mg/l TCLP. This reduction must be accomplished by 
this alternate treatment method.
    The commenters state in a footnote ``EPA's proposed delisting 
limits for the organic contaminants will not ensure legitimate and 
adequate treatment because the delisting limits substantially exceed 
Universal Treatment Standard (UTS) and/or the limits are expressed as 
leachate values instead of total concentrations.'' In order to better 
demonstrate that legitimate treatment has occurred in the case of 
organic contaminants, EPA is adding a requirement that the organic 
constituents of concern in the unstabilized sludge must be treated to 
below the total concentration of the UTS value as well as the 
calculated health-based leachate concentration value. Leachate values 
that are higher than the total concentration are logically eliminated.

    (1) Delisting Levels: All leachable concentrations for the 
constituents in (1)(A) and (1)(B) in the approximately 5,000 cubic 
yards of combined stabilization materials and excavated sludges from 
the bottom portion of the northwest lagoon of the surface 
impoundments which are closed as a landfill must not exceed the 
following levels (ppm) after the stabilization process is completed 
in accordance with Condition (3). Constituents must be measured in 
the waste leachate by the method specified in 40 CFR 261.24. Cyanide 
extractions must be conducted using distilled water in the place of 
the leaching media per 40 CFR 261.24. Constituents in (1)(C) must be 
measured as the total concentrations in the waste(ppm).
    (A) Inorganic Constituents (leachate) Antimony--0.336; Cadmium--
0.280; Chromium (total)--5.0; Lead--0.84; Cyanide--11.2;
    (B) Organic Constituents (leachate) Benzene--0.28; trans-1,2-
Dichloroethene--5.6; Tetrachloroethylene--0.280; Trichloroethylene--
0.280
    (C) Organic Constituents (total analysis) Benzene--10.; 
Ethylbenzene--10.; Toluene--30; Xylenes--30.; trans-1,2-
Dichloroethene--30.; Tetrachloroethylene--6.0; Trichloroethylene--
6.0

    If delisting limits are not met, then the waste cannot be delisted 
and cannot be transported to a Subtitle D landfill.
    Comment: Commenters assert that the delisting levels for the 
untreated sludge are less stringent than the corresponding UTS for 
cadmium, chromium, and lead.
    Response: As stated previously, the land disposal restrictions do 
not apply to the waste that is subject to the delisting and therefore, 
the UTS are not required to be met. The delisting levels were 
calculated using the EPACML model and health-based concentrations for 
drinking water. The resulting calculated health-based concentrations 
are above the UTS standards.
    However, in evaluating the data, it should be noted that the actual 
concentrations of these three constituents in the petitioned waste are 
below the UTS concentrations when the 95 percent UCL is calculated (see 
next response for an explanation of the 95 percent UCL). Furthermore, 
since the stabilization reduced the actual concentrations of the three 
constituents in the 80,000 cubic yards of stabilized waste to below the 
95 percent UCL of the UTS, it would be reasonably expected that similar 
results would be obtained after the 2500 cubic yards of unstabilized 
sludges undergoes the stabilization process and that each sample would 
yield concentrations below the UTS values. In any case, the calculated 
health-based concentrations must be met before the petitioned waste is 
excluded from Subtitle C management.
    Comment: The commenters indicate a concern that several samples of 
the stabilized sludge leach levels ``sometimes fails to achieve the UTS 
for cadmium.'' They indicate that ``these exceedances are relevant 
because the treatment standards are established and enforced through 
grab sampling, thus every sample must conform to the requisite 
treatment standards.''
    Response: In delisting, samples are often composited in order to 
establish the mean concentration of the entire waste stream or waste 
volume to be disposed of in the landfill. This value is more 
representative of the waste. The highest concentration value identified 
in a group of samples is generally used as a screening level. If the 
waste does not pass the initial screening evaluation and the sample 
size is large enough, then the 95 percent UCL of the mean concentration 
is calculated for all samples within the sample population. This 
concentration is used as a representative value for evaluation purposes 
beyond the initial screening. One grab sample usually does not 
represent a waste stream or waste volume (depending on sample size and 
homogeneity). See USEPA Petitions to Delist Hazardous Wastes A Guidance 
Manual, Second Edition, March 1993; USEPA RCRA Sampling Procedures 
Handbook, August 1989; and USEPA SW-846, Test Methods for Evaluating 
Solid Waste, Volume II.
    As shown in the proposed exclusion (63 FR 37803, July 14, 1998), 
the cadmium leachate concentration value for the stabilized waste for 
the 95 percent UCL of the mean concentration value is calculated at 
0.0236 mg/l which yielded a compliance point concentration of 0.00042 
mg/l which is well below the health-based level of 0.005 mg/l for 
cadmium used in the delisting decision making. It should also be noted 
that the 95% UCL

[[Page 9441]]

concentration value of 0.0236 mg/l TCLP is also below the UTS 
concentration level for cadmium of 0.11 mg/l TCLP.
    The EPA is also concerned about the presence of wastes which are 
not stabilized as indicated by either individual or composited samples. 
Instead of allowing the approximately 2500 cubic yards of unstabilized 
waste identified by sampling to be simply mixed in with the 80,000 
cubic yards of stabilized sludges, EPA calculated health-based 
delisting levels for the constituents of concern. This was done to 
insure that the unstabilized waste with elevated concentrations would 
be stabilized to the calculated delisting limits. These delisting 
limits are established based on health considerations and are 
relatively low concentration levels.
    If delisting levels cannot be attained and the waste is to placed 
in another land disposal unit, McDonnell Douglas is required to manage 
the unstabilized waste as hazardous waste in accordance with to 
Subtitle C requirements and the required technology standards.
The Delisting Limits for the Untreated Sludge
    Comment: The commenters requested that EPA increase the active life 
of the landfill as used in the modified EPA Composite Landfill Model 
(EPACML) from the 20 years for use in delisting (See 56 FR 32998, July 
18, 1991) to a 30 year period as used in the promulgation of the 
petroleum refinery listing determination See 63 FR 42139, August 6, 
1998.
    The commenters were concerned that the increased active life would 
increase the waste volume and thus the DAF which would then change the 
calculated delisting levels to more conservative values which might 
cause some of the delisting values for the unstabilized sludge to be 
unprotective. Similarly, the evaluation of the stabilized sludge could 
also prove to be incorrect.
    Response: The published EPACML values for DAFs as compared to waste 
volumes are based on a facility generating the charted waste volume on 
a per year basis for 20 years. For example, a 1000 cubic yard volume in 
the table represents 20,000 cubic yards of total waste disposed. Since 
this is a one-time delisting, the waste volume is not generated on a 
yearly basis for 20 years and is thus finite. Therefore, in McDonnell 
Douglas' case, the waste volume must be divided by 20 to yield a DAF 
that corresponds to the actual total volume. That is to say, to use the 
table, 85,000 cubic yards is the same volume as 4,250 cubic yards per 
year for 20 years. See 56 FR 33000, July 18, 1991.
    If the 30 year landfill life was applied, the modified EPACML model 
would be rerun increasing waste volumes and thus DAFs. The DAFs would 
not be changed in a straight line relationship as suggested by the 
commenters. See 56 FR 32999, July 18, 1991.
    However, in this specific case, if the change to 30 years was made, 
the increased waste volumes would be divided by 30 instead of 20 for a 
one-time delisting thus yield similar DAF values and similar delisting 
limits to those presently used.
    The conclusion is that a change to a 30 year active life would not 
make a significant difference in the DAF used in the calculations for 
the waste delisted in this instance and the petitioned waste would 
still qualify for delisting.
Delisting of the Stabilized Sludge
    Comment: The commenters contend that EPA should impose cadmium 
delisting limits and verification testing requirements for the 
previously stabilized sludge in order to ensure the cadmium is treated 
sufficiently to achieve the desired leach values consistent with the 
reduced DAFs based upon a minimum 30 year landfill life.
    Response: As previously explained, the application of the 30 year 
landfill active life would not make a significant difference for a one-
time delisting since the waste volume is finite. Therefore, the second 
sample of cadmium would remain below heath-based delisting levels for a 
calculated theoretical down-gradient receptor well using the modified 
EPACML. The appropriate evaluation of cadmium as a constituent of 
concern has been previously addressed in this notice.
    No verification testing is being required for the previously 
stabilized waste. It was determined that the facility presented 
sufficient amounts of information to demonstrate that the previously 
stabilized waste met the delisting criteria. Verification testing is 
being required to demonstrate that delisting limits are met for the 
approximately 5000 cubic yards of newly stabilized waste which is 
processed by mixing the 2500 cubic yards of presently unstabilized 
waste with stabilization materials,
    Comment: Furthermore, the commenters were concerned about ``EPA's 
reliance on onsite groundwater monitoring data to refute the modeling 
prediction.''
    Response: The EPA did not use ground water monitoring data to 
refute the modeling predications. As previously shown, the modeling 
predictions stand on their own merit and fully support the granting of 
the petition.
    Ground water monitoring data was evaluated as an additional source 
of information. The ground water data indicated that constituents of 
concern had not been detected at nearby detection monitoring wells at 
concentrations of regulatory concern, therefore this information was 
considered to support the petition. Conversely, if ground water 
monitoring data had shown concentrations above levels of concern had 
been detected, this information would have supported denial of the 
petition.
Typographical Error Correction
    The EPA is correcting the compliance point concentration value for 
nickel found in Table 4B. of the proposed exclusion (63 FR 37803, July 
14, 1998) which should be 0.005 mg/l and not 10.005 mg/l as printed.
    In the Delisting Levels section, EPA is correcting the Hexavalent 
Chromium constituent to read ``Chromium (total)'' to be consistent with 
the MCL and the regulatory TCLP usage of total chromium instead of 
hexavalent chromium. Total chromium leachate values were used to 
calculate the delisting levels and should be reflected as total 
chromium leachate in the delisting levels sections instead of 
hexavalent chromium leachate (63 FR 37804 and 37807, July 14, 1998).

    (A) Inorganic Constituents (leachate) Antimony-0.336; Cadmium-
0.280; Chromium (total)-5.0; Lead-0.84; Cyanide-11.2;

C. Final Agency Decision

    For reasons stated in both the proposal and this notice, EPA 
believes that McDonnell Douglas' petitioned waste should be excluded 
from hazardous waste control. The EPA, therefore, is granting a final 
one-time exclusion to McDonnell Douglas Corporation, located in Tulsa, 
Oklahoma, for a maximum of 85,000 cubic yards of stabilized waste, 
described in its petition as EPA Hazardous Waste No. F019 with minor 
amounts of F002, F003, and F005. A conditional one-time exclusion is 
granted for approximately 5000 cubic yards of the total waste volume. 
This 5000 cubic yards of waste consists of 2500 cubic yards of 
unstabilized waste located in the bottom portion of the northwest 
section of the surface impoundments which were closed as a single RCRA 
landfill plus the stabilization materials to be added. This waste is 
required to undergo stabilization and verification testing before being 
considered as excluded

[[Page 9442]]

from Subtitle C regulation. Requirements for control of emissions from 
volatilization or airborne dust during the stabilization process have 
been included in this one-time exclusion. This exclusion only applies 
to the wastes as described in the petition.
    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. McDonnell 
Douglas plans to dispose of the excluded waste in one or more 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 the State 
regulatory authority to determine the current status of their wastes 
under the State law.
    Furthermore, some States (e.g., Louisiana, Georgia, and 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. McDonnell Douglas 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 February 26, 1999. 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 (E.O.) 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 the 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.

IX. Submission to Congress and General Accounting Office

    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

[[Page 9443]]

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. 
The EPA is not required to submit a rule report regarding today's 
action under section 801 because this is a rule of particular 
applicability, etc. 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, 
procedures, or practice that do not substantially affect the rights or 
obligations of non-agency parties. See 5 U.S.C. 804(3). This rule will 
become effective on the date of publication in the Federal Register.

X. Executive Order 13045--Protection of Children From Environmental 
Health Risks and Safety Risks

    The E.O. 13045 is entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997). This order applies to any rule that EPA determines: (1) is 
economically significant as defined under Executive Order 12866, and 
(2) the environmental health or safety risk addressed by the rule has a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This final 
rule is not subject to E.O. 13045 because this is not a n economically 
significant regulatory action as defined by E.O. 12866.

XI. Executive Order 12875

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local, or 
tribal government, unless the Federal Government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the OMB a 
description of the extent of EPA's prior consultation with 
representatives of affected state, local, and tribal governments, the 
nature of their concerns, copies of written communications from the 
governments, and a statement supporting the need to issue the 
regulation. In addition, E.O. 12875 requires EPA to develop an 
effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.'' Today's rule does not 
create a mandate on state, local or tribal governments. The rule does 
not impose any enforceable duties on these entities. Accordingly, the 
requirements of section 1(a) of E.O. 12875 do not apply to this rule.

XII. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the OMB, in a separately identified section of the 
preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, representatives of Indian 
tribal governments ``to provide meaningful and timely input in the 
development of regulatory policies on matters that significantly or 
uniquely affect their communities.'' Today's rule does not 
significantly or uniquely affect the communities of Indian tribal 
governments. Accordingly, the requirements of section 3(b) of E.O. 
13084 do not apply to this rule.

XIII. National Technology Transfer and Advancement Act

    Under Section 12(d) if the National Technology Transfer and 
Advancement Act, the Agency is directed to use voluntary consensus 
standards in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, business practices, 
etc.) That are developed or adopted by voluntary consensus standard 
bodies. Where available and potentially applicable voluntary consensus 
standards are not used by EPA, the Act requires that Agency to provide 
Congress, through the OMB, an explanation of the reasons for not using 
such standards.
    This rule does not establish any new technical standards and thus, 
the Agency has no need to consider the use of voluntary consensus 
standards in developing this final rule.

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: February 23, 1999.
William L. Luthans,
Acting Director, Multimedia Planning and Permitting Division.

    For the reasons set out in the preamble, 40 CFR part 261 is to be 
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 1 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 Secs. 260.20 and 
260.22

                               Table 1.--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
               Facility                        Address                          Waste description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
McDonnell Douglas Corporation........  Tulsa, Oklahoma........  Stabilized wastewater treatment sludges from
                                                                 surface impoundments previously closed as a
                                                                 landfill (at a maximum generation of 85,000
                                                                 cubic yards on a one-time basis). EPA Hazardous
                                                                 Waste No. F019, F002, F003, and F005 generated
                                                                 at U.S. Air Force Plant No. 3, Tulsa, Oklahoma
                                                                 and is disposed of in Subtitle D landfills
                                                                 after February 26, 1999.

[[Page 9444]]

 
                                                                McDonnell Douglas must implement a testing
                                                                 program that meets the following conditions for
                                                                 the exclusion to be valid:
                                                                (1) Delisting Levels: All leachable
                                                                 concentrations for the constituents in
                                                                 Conditions (1)(A) and (1)(B) in the
                                                                 approximately 5,000 cubic yards of combined
                                                                 stabilization materials and excavated sludges
                                                                 from the bottom portion of the northwest lagoon
                                                                 of the surface impoundments which are closed as
                                                                 a landfill must not exceed the following levels
                                                                 (ppm) after the stabilization process is
                                                                 completed in accordance with Condition (3).
                                                                 Constituents must be measured in the waste
                                                                 leachate by the method specified in 40 CFR
                                                                 261.24. Cyanide extractions must be conducted
                                                                 using distilled water in the place of the
                                                                 leaching media per 40 CFR 261.24. Constituents
                                                                 in Condition (1)(C) must be measured as the
                                                                 total concentrations in the waste(ppm).
                                                                  (A) Inorganic Constituents (leachate)
                                                                  Antimony-0.336; Cadmium-0.280; Chromium
                                                                 (total)-5.0; Lead-0.84; Cyanide-11.2;
                                                                  (B) Organic Constituents (leachate)
                                                                  Benzene-0.28; trans-1,2-Dichloroethene-5.6;
                                                                 Tetrachloroethylene-0.280; Trichloroethylene-
                                                                 0.280
                                                                  (C) Organic Constituents (total analysis).
                                                                  Benzene-10.; Ethylbenzene-10.; Toluene-30.;
                                                                 Xylenes-30.; trans-1,2-Dichloroethene-30.;
                                                                 Tetrachloroethylene-6.0; Trichloroethylene-6.0.
                                                                  McDonnell Douglas Corporation shall control
                                                                 volatile emissions from the stabilization
                                                                 process by collection of the volatile chemicals
                                                                 as they are emitted from the waste but before
                                                                 release to the ambient air. and the facility
                                                                 shall use dust control measures. These two
                                                                 controls must be adequate to protect human
                                                                 health and the environment.
                                                                  The approximately 80,000 cubic yards of
                                                                 previously stabilized waste in the upper
                                                                 northwest lagoon, entire northeast lagoon, and
                                                                 entire south lagoon of the surface impoundments
                                                                 which were closed as a landfill requires no
                                                                 verification testing.
                                                                  (2) Waste Holding and Handling: McDonnell
                                                                 Douglas must store as hazardous all stabilized
                                                                 waste from the bottom portion of the northwest
                                                                 lagoon area of the closed landfill as generated
                                                                 until verification testing as specified in
                                                                 Condition (3), is completed and valid analyses
                                                                 demonstrate that Condition (1) is satisfied. If
                                                                 the levels of constituents measured in the
                                                                 samples of the stabilized waste do not exceed
                                                                 the levels set forth in Condition (1), then the
                                                                 waste is nonhazardous and may be managed and
                                                                 disposed of in a Subtitle D landfill in
                                                                 accordance with all applicable solid waste
                                                                 regulations. If constituent levels in a sample
                                                                 exceed any of the delisting levels set in
                                                                 Condition (1), the waste generated during the
                                                                 time period corresponding to this sample must
                                                                 be restabilized until delisting levels are met
                                                                 or managed and disposed of in accordance with
                                                                 Subtitle C of RCRA.
                                                                  (3) Verification Testing Requirements: Sample
                                                                 collection and analyses, including quality
                                                                 control procedures, must be performed according
                                                                 to SW-846 methodologies. McDonnell Douglas must
                                                                 stabilize the previously unstabilized waste
                                                                 from the bottom portion of the northwest lagoon
                                                                 of the surface impoundment (which was closed as
                                                                 a landfill) using fly ash, kiln dust or similar
                                                                 accepted materials in batches of 500 cubic
                                                                 yards or less. McDonnell Douglas must analyze
                                                                 one composite sample from each batch of 500
                                                                 cubic yards or less. A minimum of four grab
                                                                 samples must be taken from each waste pile (or
                                                                 other designated holding area) of stabilized
                                                                 waste generated from each batch run. Each
                                                                 composited batch sample must be analyzed, prior
                                                                 to disposal of the waste in the batch
                                                                 represented by that sample, for constituents
                                                                 listed in Condition (1). There are no
                                                                 verification testing requirements for the
                                                                 stabilized wastes in the upper portions of the
                                                                 northwest lagoon, the entire northeast lagoon,
                                                                 and the entire south lagoon of the surface
                                                                 impoundments which were closed as a landfill.
                                                                  (4) Changes in Operating Conditions: If
                                                                 McDonnell Douglas significantly changes the
                                                                 stabilization process established under
                                                                 Condition (3) (e.g., use of new stabilization
                                                                 agents), McDonnell Douglas must notify the
                                                                 Agency in writing. After written approval by
                                                                 EPA, McDonnell Douglas may handle the wastes
                                                                 generated as non-hazardous, if the wastes meet
                                                                 the delisting levels set in Condition (1).

[[Page 9445]]

 
                                                                  (5) Data Submittals: Records of operating
                                                                 conditions and analytical data from Condition
                                                                 (3) 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 of Oklahoma, or
                                                                 both, 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. Sec.  1001 and 42 U.S.C. Sec.  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.
                                                                  (6) Reopener Language
                                                                  (a) If McDonnell Douglas discovers that a
                                                                 condition at the facility or an assumption
                                                                 related to the disposal of the excluded waste
                                                                 that was modeled or predicted in the petition
                                                                 does not occur as modeled or predicted, then
                                                                 McDonnell Douglas must report any information
                                                                 relevant to that condition, in writing, to the
                                                                 Regional Administrator or his delegate within
                                                                 10 days of discovering that condition.
                                                                  (b) Upon receiving information described in
                                                                 paragraph (a) from any source, the Regional
                                                                 Administrator or his delegate will determine
                                                                 whether the reported condition requires further
                                                                 action. Further action may include revoking the
                                                                 exclusion, modifying the exclusion, or other
                                                                 appropriate response necessary to protect human
                                                                 health and the environment.
                                                                  (7) Notification Requirements: McDonnell
                                                                 Douglas 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 activity. The one-time
                                                                 written notification must be updated if the
                                                                 delisted waste is shipped to a different
                                                                 disposal facility. Failure to provide such a
                                                                 notification will result in a violation of the
                                                                 delisting petition and a possible revocation of
                                                                 the decision.
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 99-4830 Filed 2-25-99; 8:45 am]
BILLING CODE 6560-50-P