[Federal Register Volume 64, Number 149 (Wednesday, August 4, 1999)]
[Proposed Rules]
[Pages 42317-42328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20040]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-6413-1]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Proposed Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule and request for comment.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
grant a petition submitted by BWX Technologies, Inc. (formerly Babcock
& Wilcox), to exclude (or ``delist'') certain solid wastes generated at
its Lynchburg, Virginia, facility from the lists of hazardous wastes
contained in Subpart D of Title 40 of the Code of Federal Regulations
Part 261. This action responds to a ``delisting'' petition submitted
pursuant to 40 CFR 260.20, which allows any person to petition the
Administrator to modify or revoke any provision of 40 CFR Parts 260
through 266, 268, and 273, and pursuant to 40 CFR 260.22, which
specifically provides generators the opportunity to petition the
Administrator to exclude a waste on a ``generator-specific'' basis from
the hazardous waste lists. This proposed decision is based on an
evaluation of waste-specific information provided by the petitioner. If
this proposed decision is finalized, the petitioned waste will be
excluded from the requirements of the hazardous waste regulations under
the Resource Conservation and Recovery Act (RCRA).
DATES: EPA is requesting public comments on this proposed decision.
Comments will be accepted until September 20, 1999. Comments postmarked
after the close of the comment period will be stamped ``late.''
Any person may request a hearing on this proposed decision by
filing a request by August 19, 1999. The request must contain the
information prescribed in 40 CFR 260.20(d).
ADDRESSES: Two copies of any comments should be sent to David M.
Friedman, Technical Support Branch (3WC11), U.S. EPA Region III, 1650
Arch Street, Philadelphia, PA, 19103-2029.
Requests for a hearing should be addressed to John A. Armstead,
Director, Waste and Chemicals Management Division (3WC00), U.S. EPA
Region III, 1650 Arch Street, Philadelphia, PA, 19103-2029.
The RCRA regulatory docket for this proposed rule is located at the
offices of U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA,
19103-2029, and is available for viewing from 8:30 a.m. to 5:00 p.m.,
Monday through Friday, excluding Federal holidays. Call David M.
Friedman at (215) 814-3395 for appointments. The public may copy
material from the regulatory docket at $0.15 per page. The docket for
this proposed rule is also located at the offices of the Campbell
County Administrator's Office, P.O. Box 100,
[[Page 42318]]
Main Street--Haberer Building 2nd floor, Rustburg, VA, 24588, and is
available for viewing from 8:30 a.m. to 5:00 p.m., Monday through
Friday, excluding holidays. Call Kathy Elliot at (804) 332-9619 for
appointments.
FOR FURTHER INFORMATION CONTACT: For technical information concerning
this document, contact David M. Friedman at the address above or at
(215) 814-3395.
SUPPLEMENTARY INFORMATION:
I. Background
A. Authority
On January 16, 1981, as part of its final and interim final
regulations implementing Section 3001 of RCRA, EPA published an amended
list of hazardous wastes from non-specific and specific sources. This
list has been amended several times, and is published at 40 CFR 261.31
and 261.32. These wastes are listed as hazardous because they typically
and frequently exhibit one or more of the characteristics of hazardous
wastes identified in Subpart C of 40 CFR Part 261 (i.e., ignitability,
corrosivity, reactivity, and toxicity) or meet the criteria for listing
contained in 40 CFR 261.11(a)(2) or (a)(3).
Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
that is described in these regulations generally is hazardous, a
specific waste from an individual facility meeting the listing
description may not be. For this reason, 40 CFR 260.20 and 260.22
provide an exclusion procedure, allowing persons to demonstrate that a
specific waste from a particular generating facility should not be
regulated as a hazardous waste.
To have its wastes excluded, a petitioner must show that wastes
generated at its facility do not meet any of the criteria for which the
wastes were listed. See 40 CFR 260.22(a)(1) and the background
documents for the listed wastes. In addition, the Hazardous and Solid
Waste Amendments (HSWA) of 1984 require EPA to consider any factors
(including additional constituents) other than those for which the
waste was listed, if there is a reasonable basis to believe that such
additional factors could cause the waste to be hazardous. See 40 CFR
260.22(a)(2). Accordingly, a petitioner must demonstrate that the waste
does not exhibit any of the hazardous waste characteristics defined in
Subpart C of 40 CFR Part 261 (i.e., ignitability, corrosivity,
reactivity, and toxicity), and must present sufficient information for
EPA to determine whether the waste contains any other constituents at
hazardous levels. Although wastes which are ``delisted'' (i.e.,
excluded) have been evaluated to determine whether or not they exhibit
any of the characteristics of hazardous waste, generators remain
obligated under RCRA to determine whether or not their waste remains
non-hazardous based on the hazardous waste characteristics defined in
Subpart C of 40 CFR Part 261.
In addition, residues from the treatment, storage, or disposal of
listed hazardous wastes and mixtures containing listed hazardous wastes
are also considered hazardous wastes. See 40 CFR 261.3(a)(2)(iv) and
(c)(2)(i), referred to as the ``mixture'' and ``derived-from'' rules,
respectively. Such wastes are also eligible for exclusion and remain
hazardous wastes until excluded. On December 6, 1991, the U.S. Court of
Appeals for the District of Columbia vacated the ``mixture/derived-
from'' rules and remanded them to EPA on procedural grounds. Shell Oil
Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). On March 3, 1992, EPA
reinstated the ``mixture'' and ``derived-from'' rules, and solicited
comments on other ways to regulate waste mixtures and residues (57 FR
7628). EPA plans to address issues related to waste mixtures and
residues in a future rulemaking.
B. Approach Used To Evaluate This Petition
BWX Technologies, Inc.'s (hereinafter, BWX Technologies') petition
requests a delisting for a listed hazardous waste. In making the
initial delisting determination, EPA evaluated the petitioned waste
against the listing criteria and factors cited in 40 CFR 261.11(a)(2)
and (a)(3). Based on this review, EPA tentatively agreed with the
petitioner, pending public comment, that the waste is non-hazardous
with respect to the original listing criteria. If EPA had found, based
on this review, that the waste remained hazardous based on the factors
for which the waste was originally listed, EPA would have proposed to
deny the petition.
EPA then evaluated the waste with respect to other factors or
criteria to assess whether there is a reasonable basis to believe that
other factors could cause the waste to be hazardous. EPA considered
whether the waste is acutely toxic, and considered the concentration of
the constituents in the waste, the toxicity of the constituents, their
tendency to migrate and to bioaccumulate, their persistence in the
environment if released from the waste, plausible and specific types of
management of the petitioned waste, the quantities of waste generated,
and waste variability.
For this delisting determination, EPA used such information
gathered to identify plausible exposure routes (i.e., ground water,
surface water, air) for hazardous constituents present in the
petitioned waste. Since BWX Technologies' waste is presently
landfilled, EPA determined that the major exposure route of concern
would be ingestion of contaminated ground water. Therefore, EPA used a
fate and transport model to predict the maximum concentrations of
hazardous constituents that may be released from the petitioned waste
and to determine the potential impact of BWX Technologies' petitioned
waste on human health and the environment. Specifically, EPA used the
estimated waste volume and the maximum reported extract concentrations
as inputs to estimate the constituent concentrations in the ground
water at a hypothetical receptor well downgradient from the disposal
site. The calculated receptor well concentrations were then compared
directly to the health-based levels at an assumed excess cancer risk of
10-6, which is the target risk level used in delisting
decision-making for the hazardous constituents of concern.
EPA believes that this fate and transport model represents a
reasonable worst-case scenario for the petitioned waste, and that a
reasonable worst-case scenario is appropriate when evaluating whether a
waste should be relieved of the protective management constraints of
RCRA Subtitle C (40 CFR Parts 260 through 266 and 268). The use of a
reasonable worst-case scenario results in conservative values for the
compliance-point concentrations and ensures that the waste, once
removed from hazardous waste regulation, should not pose a threat to
human health or the environment.
EPA also considers the applicability of ground water monitoring
data during the evaluation of delisting petitions. In this case, EPA
determined that it would be inappropriate to request ground water
monitoring data because BWX Technologies currently disposes of the
petitioned waste off-site. For petitioners using off-site management,
EPA believes that, in most cases, the ground water monitoring data
would not be meaningful. Most commercial land disposal facilities
accept waste from numerous generators. Any ground water contamination
or leachate would be characteristic of the total volume of waste
disposed of at the facility. In most cases, EPA believes that it would
be impossible to isolate ground water
[[Page 42319]]
impacts associated with any one waste disposed of in a commercial
landfill. Therefore, EPA did not request ground water monitoring data
from BWX Technologies.
Based on its evaluation of BWX Technologies' delisting petition,
EPA developed a list of constituents for the verification testing
program. Proposed maximum allowable leachate concentrations for these
constituents were derived by back-calculating from the delisting
health-based levels through the proposed fate and transport model for a
landfill management scenario. These concentrations (i.e., ``delisting
levels'') are part of the proposed verification testing conditions of
the exclusion.
Like other facilities seeking exclusions, BWX Technologies'
exclusion (if granted) would be contingent upon the facility conducting
analytical testing of representative samples of the petitioned waste at
the Lynchburg, VA facility. This testing would be necessary to verify
that the treatment system is operating as demonstrated in the petition
submitted on September 30, 1994, and in subsequent submissions.
Specifically, the verification testing requirements would be
implemented to demonstrate that the facility will continue to generate
nonhazardous waste (i.e., waste that meets the EPA's verification
testing conditions).
EPA's proposed decision to delist waste from BWX Technologies'
facility is based on the information submitted in support of today's
proposed rule. This information includes descriptions of the waste
generation processes and the wastewater treatment system at the
Lynchburg, VA facility, and data from the analysis of representative
samples of the petitioned waste. HSWA specifically requires EPA to
provide notice and an opportunity for comment before granting or
denying a final exclusion. Thus, a final decision will not be made
until all timely public comments (including those at public hearings,
if any) on today's proposal are addressed.
II. Disposition of Delisting Petition
BWX Technologies, Inc., Naval Nuclear Fuel Division, Mount Athos
Road, Lynchburg, Virginia 24505-0785.
A. Petition for Exclusion
Babcock & Wilcox acquired the Mt. Athos site and began operations
there in 1955. BWX Technologies, Inc. (an affiliate of the Babcock &
Wilcox Company) was created as the result of an internal corporate
reorganization on July 1, 1997. BWX Technologies, Naval Nuclear Fuel
Division, located in Lynchburg, Virginia, is engaged in the production
of nuclear fuel assemblies for the United States Department of Energy.
They manufacture nuclear fuels and reactor components for commercial
and military use. The BWX Technologies facility generates wastewaters
which are treated in an on-site wastewater treatment plant that
consists of four (4) discrete wastewater treatment systems. These are
the pickle acid, low-level radioactive, sanitary, and Lamella systems.
Filter cake solids were originally generated from the combined flows of
the pickle acid and the Lamella systems. However, these systems were
separated with the introduction of a microfiltration system to the
pickle acid system in 1992. The metal finishing operations, which
consist of cleaning, hydrofluoric and nitric acid pickling, and
anodizing, generate wastewaters that are treated in the pickle acid
treatment system. The treatment of these wastewaters in the pickle acid
treatment system ultimately generates a wastewater treatment sludge in
the form of a filter cake which is 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; (4) aluminum or zinc-aluminum plating 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 hazardous waste F006 is listed for cadmium, hexavalent
chromium, nickel and complexed cyanide (40 CFR Part 261, Appendix VII).
The filter cake from the pickle acid system is the only waste stream
that is the subject of the BWX Technologies' petition.
Review of this petition included consideration of the original
listing criteria, as well as the additional factors required by HSWA.
See Section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22.
B. Background
On September 30, 1994, BWX Technologies (then Babcock & Wilcox)
petitioned EPA to exclude from the lists of hazardous waste listed at
40 CFR 261.31 both past and currently generated filter cake solids
produced by its wastewater treatment facility from the treatment of
wastewaters in the pickle acid treatment system because it believed
that the petitioned waste did not meet any of the criteria under which
the waste was listed and that there were no additional constituents or
factors that would cause the waste to be hazardous. Subsequently, BWX
Technologies provided additional information to complete its petition.
Specifically, in its petition, BWX Technologies requested that EPA
grant an exclusion for its past generated filter cake consisting of 551
cubic yards per calendar year (1991 generation rate) and the currently
generated filter cake consisting of 247 cubic yards per calendar year
(1993 generation rate). BWX Technologies divided its request into these
two categories based on the installation of a microfiltration system in
1992 which minimized the volume of filter cake production from the
treatment of the pickle acid wastewaters. More recently, BWX
Technologies updated the filter cake generation rate. Based on
additional information submitted by BWX Technologies on December 17,
1998, the facility is currently generating filter cake solids at a
maximum rate of 267 cubic yards per calendar year. By letter dated
March 11, 1999, BWX Technologies requested that the delisting be based
on a waste volume of 300 cubic yards per calendar year to allow for an
increase in the waste generation rate. In support of its petition, BWX
Technologies submitted detailed descriptions of its manufacturing and
wastewater treatment process, a schematic diagram of the wastewater
treatment process, and analytical testing results for representative
samples of the petitioned wastes, including: (1) the hazardous
characteristics of ignitability and corrosivity; (2) total oil and
grease; (3) Toxicity Characteristic Leaching Procedure (TCLP, SW-846
Method 1311) analysis for volatile and semi-volatile organic compounds
and Toxicity Characteristic (TC) metals plus antimony, beryllium,
cobalt, copper, nickel, thallium, tin, vanadium and zinc; (4) total
constituent analysis for volatile and semi-volatile organic compounds
and TC metals plus antimony, beryllium, cobalt, copper, nickel,
thallium, tin, vanadium and zinc; (5) total cyanide, total sulfide,
total fluoride and total formaldehyde; and (6) TCLP analysis for
fluoride. BWX Technologies developed a list of constituents of concern
by comparing a list of all raw materials used in the plant that could
possibly appear in the petitioned waste with those found in 40 CFR Part
261, Appendix VIII and 40 CFR part 264, Appendix IX. Based on a
knowledge of their metal working processes and other processes at the
facility and of the treatment operation, BWX Technologies determined
that certain classes of chemical constituents would not be anticipated
to be present
[[Page 42320]]
in the filter cake. These chemicals include semi-volatile organic
constituents (except those constituents listed in 40 CFR 261.24),
pesticides, herbicides, dioxins and furans.
In June, 1990, the filter cake was found to contain trace levels of
special nuclear materials (i.e., uranium at typically less than 30
picocuries per gram). As of October 1991, this special nuclear material
contamination was eliminated from the filter cake. Because the past
generated filter cake was contaminated with special nuclear materials,
it was placed in drums and roll-off boxes and disposed of at a Nuclear
Regulatory Commission (NRC) approved hazardous waste landfill after the
NRC granted an exemption for filter cake as a low-level radioactive
material. Beginning in 1992, a Memtek Advanced Membrane Filtration
System has been utilized as part of the BWX Technologies' wastewater
treatment process for the pickling acid system. Currently generated
filter cake from the Memtek system is not contaminated by special
nuclear materials and is being disposed off-site at a RCRA Subtitle C
permitted facility.
In BWX Technologies' petition, the past generated filter cake
contains a radioactive component; therefore, it is classified as a
``mixed waste'' under RCRA. A ``mixed waste'' is defined as a waste
that contains both a radioactive component subject to the Atomic Energy
Act (AEA), and a hazardous component subject to RCRA. There are two
parts of the RCRA program that states implement. These are the RCRA-
base program (pre-HSWA) and HSWA. The hazardous components of mixed
wastes come under RCRA base program. Under Section 3006 of RCRA, EPA
may authorize qualified states to administer and enforce the RCRA
hazardous waste program within the state. When new, more stringent
federal requirements were promulgated or enacted, the state was
obligated to enact equivalent authority within specified time frames.
New federal requirements did not take effect in authorized states until
the state adopted the requirements as state law. Up until 1986, the
applicability of RCRA to mixed waste was unclear. To clarify the
applicability of RCRA to mixed waste, EPA issued a clarification notice
on July 3, 1986 (51 FR 24504). In that notice, EPA announced that the
hazardous component of mixed waste is subject to RCRA jurisdiction and
that the radioactive portion of the waste (source, special nuclear, and
by-product material) is subject to the Atomic Energy Act (AEA). EPA
also required states which had obtained RCRA base program authorization
prior to the July 3, 1986 notice to revise their programs to clarify
the regulatory status of mixed waste (i.e., to include the hazardous
component of mixed waste in their program definition of solid waste),
and to apply for EPA authorization to their revised program. The
Commonwealth of Virginia had been granted authorization to administer
the RCRA base program prior to July 3, 1986. However, as of this date,
Virginia has not been specifically authorized for mixed waste. In a
State which is authorized for the RCRA base program, but not
specifically authorized for mixed waste, this waste is not subject to
the Federal hazardous waste requirements until the State revises its
program and receives authorization specifically for mixed waste.
Therefore, EPA cannot consider for exclusion the past generated filter
cake solids at BWX Technologies.
BWX Technologies' Naval Nuclear Fuel Division includes several
operations which generate wastewaters which are influent to the pickle
acid treatment system. A brief description of these operations follows.
(1) Metal Processing--Metal components undergo a metal forming
operation and subsequent heat treatment. Solvents, including acetone,
xylene, and trichloroethylene (TCE), were used for pre- and post-
cleaning to remove various substances. Grit blasting is conducted to
remove the oxide film or scale which develops during heat treatment.
Prior to 1994, metal components were degreased using ultrasonic
detergent cleaning or TCE. In 1994, BWX Technologies eliminated the use
of xylene, and the use of acetone and TCE have been strictly limited.
None the these solvents (acetone, xylene and TCE) is currently used for
pre- or post-cleaning of metal components. Metal components are
currently cleaned with aqueous-based cleaning solutions and soaps.
Other metal processing operations include corrosion testing, welding,
and component inspection.
(2) Metal Pickling--Once cleaned and inspected, metal components
are pickled in an aqueous acid solution containing hydrofluoric acid
and nitric acid. The metal is then passed through cold and hot water
rinse baths.
(3) Metal Anodizing--The final metal components are anodized with a
caustic solution followed by water rinses.
(4) Copper Recovery--BWX Technologies conducts a copper dissolution
operation using a concentrated nitric acid solution. The process
combines the copper-laden spent nitric acid solution with dilute nitric
acid rinses. In the past, the resultant solution was treated in an on-
site copper recovery process. The copper was removed and sold as a
copper oxide product. Non-acidic waste solutions from the copper
recovery process were treated in the wastewater treatment plant (WWTP).
The copper recovery system ceased operation in 1993. Since December
1993 spent copper nitrate solutions have been collected and shipped
off-site as a hazardous waste for recovery.
(5) Hafnium and Inconel Pickling--Hafnium is pickled in the bath
used for metal components (after the metal components have been
pickled) or in a bath containing fresh nitric and hydrofluoric acid
solutions. Inconel (a corrosion-resistant alloy of nickel and chromium)
components are cleaned in an aqueous solution of hydrofluoric and
nitric acids, and subsequently rinsed in cold and hot water.
(6) Aluminum Pickling and Anodizing--Aluminum components are
pickled using a caustic solution, cleaned with an aqueous acid solution
consisting of nitric and hydrofluoric acids, and rinsed in cold and hot
water. Aluminum is anodized with a caustic solution followed by water
rinses.
(7) Other Wastewater Streams Entering the WWTP--Four (4)
intermittent wastewater streams have also been treated as part of the
pickle acid wastewater system. These included: (a) rinsewater from the
aluminum oxide grit blasting operation; (b) backwash of the softener,
demineralizer, and sand filter components of the deionized water supply
system; (c) effluent from the x-ray photography laboratory silver
recovery process; and (d) a low flow sub-surface creek (i.e., ground
water seep) intercepted and treated for pH adjustment. Of these four
(4) intermittent waste streams, the grit blasting operation is the only
one that now discharges to the pickle acid wastewater system. The sub-
surface creek, filter plant backwash and silver recovery flows are all
treated in the Lamella System. According to BWX Technologies, the three
(3) intermittent waste streams that are now treated in the Lamella
System did not have an impact on the pickle acid system, and the
removal of these streams has had no significant effect on the
characteristics of the filter cake.
(8) Acid clean line--This line was added in 1994 as part of a new
manufacturing process. It consists of a series of adjacent tanks
including hot detergent cleaning, acid cleaning and a variety of rinse
tanks. The acid tanks which utilize a mixture of nitric, hydrofluoric,
hydrochloric and phosphoric acids, as well as ferric chloride, are used
to clean Inconel metal
[[Page 42321]]
components. The spent acid mixtures are sent off-site for disposal. The
detergent and rinse tanks discharge to the pickle acid system.
(9) An industrial water jet cutting operation was added to the
manufacturing facility in 1995. The water jet cutter uses a high-
pressure jet of water/garnet sand to cut Inconel metal. Wastewater from
the cutter flows through a cyclone separator to remove sand and metal
fines, and then flows to the pickle acid system.
The current wastewater treatment system is a Memtek Advanced
Filtration System which was put into operation in 1992 to minimize the
volume of filter cake produced from the neutralization of the pickling
wastewaters. Bench-scale and pilot plant testing of the Memtek System
indicated that this system reduced the volume of waste generated by 75
percent. The actual reduction attributable to the Memtek System is
between 50 and 75 percent.
The pickling wastewaters are first held in a recirculated
equalization tank to reduce fluctuations in the fluoride concentration.
From the equalization tank, the pickling wastewaters flow to a 2,000-
gallon tank where lime is added for initial pH adjustment. The lime
causes the fluoride in the wastewater to precipitate. The bulk of the
neutralization or final adjustment to obtain a pH of 10.5 is made with
sodium hydroxide in a series of two 500-gallon reaction tanks. The
sodium hydroxide does not produce any additional neutralization sludge
since most sodium salts are soluble. The treated wastewater is
transferred to a 650-gallon concentration tank. The wastewater is
pumped out of the concentration tank and through a bank of
microfilters. Effluent from the filters discharges to a day tank and
then to an equalization tank. The equalization tanks are monitored for
pH and fluoride prior to reprocessing or discharge to an outfall.
Concentrated solids from the filter banks are returned to the
concentration tank. The concentration of solids in the concentration
tank gradually increases as more solids are added. A timed pump
transfers solids from the bottom of the concentration tank to the plate
and frame filter press. At the filter press, the slurry is dewatered to
produce a 50 to 60 percent solids filter cake.
C. Waste Analysis
BWX Technologies developed a list of analytical constituents based
on a review of facility processes, Material Safety Data Sheets for raw
materials and chemical additives used in the manufacturing process, and
recommendations contained in EPA delisting guidance (Petitions to
Delist Hazardous Waste: A Guidance Manual, 2nd Edition, EPA/530-R-93-
007, NTIS Publication Number PB 93-169 365, March 1993). For the
delisting petition, BWX Technologies collected four (4) weekly
composite samples of the filter cake solids. In order to ensure the
representativeness of samples collected in 1992 and to detect any
variability over time in the concentration of constituents of concern
within the filter cake, time-composite sampling was conducted. BWX
Technologies provided data which shows that the samples collected take
into account all wastes that are discharged to the pickle acid
treatment system.
Composite samples were collected beginning September 3, 1992, and
continuing through September 29, 1992. Each composite sample consisted
of bore hole grab samples taken directly from the filled filter press
troughs. The daily grab samples were collected from different filter
press troughs each day they were collected so that any variations
through the filter press were characterized in the weekly composite
sample. At the end of each week, the containers holding the daily grab
samples were emptied into a clean stainless steel bucket and mixed
thoroughly. Each sample was packed in an appropriately labeled
container. Composite samples for most analyses were prepared in the
field. However, samples for volatile organic compound (VOC) analysis
were sent to the analytical laboratory to be composited under
controlled conditions in order to prevent the loss of VOCs.
To supplement the data in its petition, BWX Technologies also
collected additional samples as part of an annual sampling program.
Composite samples of the filter cake were collected and analyzed for
the years 1993, 1994, 1995, 1996, 1997 and 1998.
To quantify the total constituent and leachate concentrations in
the four (4) composite samples that were analyzed in 1992, BWX
Technologies used SW-846 methods 7040 for antimony, 7061 for arsenic,
6010 for barium, 7091 for beryllium, 7130 for cadmium, 7190 for
chromium, 7201 for cobalt, 7210 for copper, 7421 for lead, 7470 and
7471 for mercury, 7520 for nickel, 6010 for selenium, 6010 for silver,
7841 for thallium, 7870 for tin, 7911 for vanadium, 7950 for zinc, 9010
for cyanide, 9030 for sulfide, 8010 for halogenated volatile organics,
8020 for aromatic volatile organics, and 8270 for semivolatile organic
compounds. BWX Technologies used EPA method 340.2 to determine fluoride
concentrations and NIOSH method 3500 to determine formaldehyde
concentrations. Using SW-846 method 9071, BWX Technologies determined
that the samples of the petitioned waste had a maximum oil and grease
content of less than one (1) percent. (If the total oil and grease
concentrations had been greater than or equal to one (1) percent, the
Oily Waste Extraction Procedure, Method 1330, would have been
required.) BWX Technologies also used these methods on the leachate
obtained using the Toxicity Characteristic Leaching Procedure or TCLP
(SW-846 method 1311), as described below, to determine leachable levels
of metals and selected volatile organic compounds.
Composite samples analyzed during the BWX Technologies' annual
sampling program were done using the same analytical methods as the
1992 composites with the following changes: concentrations for all
metal analytes were determined using method 6010 with the exception of
mercury (which continued to be determined using methods 7470 and 7471),
and volatile organic compounds which were determined using method 8260.
EPA has reviewed the sampling procedures used by BWX Technologies
and has determined that they satisfy EPA criteria for collecting
representative samples.
Table 1 presents the maximum total and leachate concentrations for
17 metals and fluoride, total cyanide and total sulfide. The detection
limits presented in Table 1 represent the lowest concentrations
quantifiable by BWX Technologies when using appropriate SW-846 methods
to analyze its waste. (Detection limits may vary according to the waste
and waste matrix being analyzed.)
Table 1.--Maximum Total Constituent and Leachate Concentrations \1\ WWTP
Filter Cake
------------------------------------------------------------------------
Total TCLP
constituent leachate
Inorganic constituents analyses analyses
(mg/kg) (mg/nl)
------------------------------------------------------------------------
Antimony.................................... 28.0 *0.7
Arsenic..................................... 0.13 0.017
Barium...................................... 120.0 0.46
Beryllium................................... <0.01 0.004
Cadmium..................................... 1.14 0.018
Chromium.................................... 1100.0 1.8
Cobalt...................................... 34.0 2.2
Copper...................................... 1850.0 79.3
Lead........................................ 12.3 0.22
Mercury..................................... 0.5 0.0036
Nickel...................................... 260.0 12.5
Selenium.................................... <0.05 <0.016
Silver...................................... 419 0.11
Thallium.................................... <0.1 **0.159
Tin......................................... 1170 0.107
Vanadium.................................... 18.5 <0.004
[[Page 42322]]
Zinc........................................ 130 1.8
Fluoride.................................... 11875.0 22.6
Cyanide (total)............................. <0.02 NA
Sulfide (total)............................. 14.1 NA
------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent
found in any one sample. These levels do not necessarily represent the
specific levels found in one sample.
< Denotes that the constituent was not detected at the detection limit
specified in the table.
*Value represents 1 sample analysis out of 4 done in 1992. Since then,
process improvements have resulted in all values for antimony being
<0.069.
** Maximum TCLP concentration for this constituent occurred in a sample
that was not analyzed for total constituent concentration.
BWX Technologies also analyzed samples of the petitioned waste for
volatile and semivolatile organic compounds. Table 2 presents the
maximum total and leachate concentrations for all detected organic
constituents in BWX Technologies' waste samples.
Table 2.--Maximum Total Constituent and Leachate Concentrations \1\ WWTP
Filter Cake
------------------------------------------------------------------------
Total TCLP
constit-uent leachate
Organic constituents analyses analyses
(mg/kg) (mg/l)
------------------------------------------------------------------------
Acetone..................................... 0.181 0.062
Benzene..................................... 0.007 <0.005
Methyl Ethyl Ketone (2-Butanone)............ 0.017 <0.05
Methylene Chloride.......................... <0.01 *0.12
Toluene..................................... 0.008 <0.005
1,1,1-Trichloroethane....................... 0.004 <0.005
------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent
found in any one sample. These levels do not necessarily represent the
specific levels found in one sample.
< Denotes that the constituent was not detected at the detection limit
specified in the table.
* Maximum TCLP concentration for this constituent occurred in a sample
that was not analyzed for total constituent concentration.
BWX Technologies submitted a signed Certification of Accuracy and
Responsibility statement found at 40 CFR 260.22(i)(12) as required for
the information contained in the petition submitted on September 30,
1994, as well as for the information contained in all subsequent
submissions.
EPA does not generally verify submitted test data before proposing
delisting actions. The sworn affidavit submitted with the petition
requires that the petitioner present truthful and accurate results.
Failure to do so can subject the petitioner to significant penalties,
including the possibility of fine and imprisonment.
D. EPA Evaluation
Under a landfill disposal scenario, the major exposure route of
concern for any hazardous constituents would be ingestion of
contaminated ground water. EPA, therefore, evaluated BWX Technologies'
petitioned waste using the modified EPA Composite Model for Landfills
(EPACML) which predicts the potential for ground water contamination
from wastes that are landfilled. See 56 FR 32993 (July 18, 1991), 56 FR
67197 (December 30, 1991), and the RCRA public docket for these notices
for a detailed description of the EPACML model, the disposal
assumptions, and the modifications made for delisting. This model,
which includes both unsaturated and saturated zone transport modules,
was used to predict reasonable worst-case contaminant levels in ground
water at a compliance point (i.e., a receptor well serving as a
drinking-water supply). Specifically, the model estimated the dilution/
attenuation factor (DAF) resulting from subsurface processes such as
three-dimensional dispersion and dilution from ground-water recharge
for a specific volume of waste. The DAFs generated using the EPACML
vary from a maximum of 100 for smaller annual volumes of waste (i.e.,
less than 1,000 cubic yards per year) to DAFs approaching ten for
larger annual volume wastes (i.e., 400,000 cubic yards per year). EPA
requests comments on the use of the EPACML as applied to the evaluation
of BWX Technologies' waste.
Typically, EPA uses the maximum annual waste volume to derive a
petition-specific DAF. The DAFs are currently calculated assuming an
ongoing process that generates wastes for 20 years. BWX Technologies'
maximum waste volume of 300 cubic yards per year corresponds to a DAF
of 100. EPA's evaluation of the BWX Technologies' filter cake using a
DAF of 100, a maximum waste volume of 300 cubic yards, and the maximum
reported TCLP concentrations (see Tables 1 and 2) yielded the following
compliance point concentrations (see Table 3).
Table 3.--EPACML: Calculated Compliance-Point Concentrations WWTP Filter
Cake
------------------------------------------------------------------------
Compliance
point Levels of
Inorganic and organic constituents concentrations concern (mg/
(mg/l) \1\ l) \2\
------------------------------------------------------------------------
Antimony.................................. 0.007 0.006
Arsenic................................... 0.00017 0.05
Barium.................................... 0.0046 2.0
Beryllium................................. 0.00004 0.004
Cadmium................................... 0.00018 0.005
Chromium.................................. 0.018 0.1
Cobalt.................................... 0.022 2.1
Copper.................................... 0.793 1.3
Lead...................................... 0.0022 0.015
Mercury................................... 0.000036 0.002
Nickel.................................... 0.125 0.7
Silver.................................... 0.0011 0.2
Thallium.................................. 0.00159 0.002
Tin....................................... 0.00107 21.0
Zinc...................................... 0.018 10.0
Fluoride.................................. 0.226 4.0
Acetone................................... 0.00062 4.0
Methylene Chloride........................ 0.0012 0.005
------------------------------------------------------------------------
\1\ Using the maximum TCLP leachate concentration, based on a DAF of 100
for a maximum annual volume of 300 cubic yards.
\2\ See ``Docket Report on Health-Based Levels and Solubilities Used in
the Evaluation of Delisting Petitions,'' May 1996 located in the RCRA
Public Docket for today's notice.
The compliance point concentrations presented in Table 3 are below
the current health-based levels (HBLs) for all inorganic and organic
constituents except for the metal antimony. EPA does not consider the
maximum reported TCLP concentration of 0.7 mg/l for antimony to be
representative of the BWX Technologies' currently generated filter
cake. EPA came to this conclusion because the one TCLP result that
exceeded the HBL occurred in only one (1) sample (out of four (4))
collected and analyzed by BWX Technologies in 1992. Because antimony
was detected in the method blank for this sample, there is not a high
degree of confidence in the reported concentration. In addition, since
1992, TCLP concentrations for antimony in the filter cake have been
below detection levels in all subsequent analyses for 1993, 1994, 1995,
1996, 1997 and 1998.
BWX Technologies performed total constituent analyses for cyanide
(total), but did not submit TCLP results. EPA has determined that TCLP
results are not required for this demonstration since cyanide is not
used in any of the processes at BWX Technologies, and since total
constituent analysis for cyanide (total) concentrations in the filter
cake have all been below the reported detection limit of 0.02 mg/kg.
BWX Technologies performed total constituent analyses for fluoride,
but
[[Page 42323]]
did not submit TCLP results until 1998. In evaluating the possibility
that fluoride concentrations could be present in sufficient
concentrations to be of concern, EPA initially evaluated BWX
Technologies' filter cake assuming the extreme worst case situation;
that is that all of the fluoride present in the filter cake would leach
out of the filter cake during a TCLP test (i.e., the fluoride present
in the filter cake was 100 percent leachable). While some of the
earlier total constituent analyses results for fluoride could,
hypothetically, result in an exceedence of the 4 mg/l HBL concentration
for fluoride when evaluating the ground water contamination pathway
using the modified EPACML model described earlier, EPA considered this
result to be highly unlikely because the fluoride in BWX Technologies'
filter cake is present as calcium fluoride (a very insoluble form).
Additionally, BWX Technologies has certified that waste minimization
efforts at its facility have reduced influent fluoride concentrations
to the wastewater treatment facility. Total fluoride concentrations for
the filter cake generated in more recent years are more than 50 percent
lower that past generation. Total fluoride concentrations in the
current filter cake have been less than 5000 mg/kg since 1995. At this
level, assuming the extreme worst case situation evaluated above (that
the fluoride is 100 percent leachable), and using a DAF of 100 based on
a maximum annual waste volume of 300 cubic yards, fluoride levels could
not exceed the HBL of 4.0 mg/l. To support this conclusion, BWX
Technologies submitted TCLP results for fluoride for the most recent
samples collected and analyzed in 1998. The results confirm that
leachable fluoride levels are below delisting levels of concern (see
the maximum compliance point concentration in Table 3).
For the other inorganic constituents, the maximum reported or
calculated leachate concentrations of arsenic, barium, beryllium,
cadmium, chromium, cobalt, copper, lead, mercury, nickel, silver,
thallium, tin and zinc in BWX Technologies' filter cake yielded
compliance point concentrations well below the health-based levels used
in delisting decision-making. EPA did not evaluate the mobility of the
remaining inorganic constituents (i.e., selenium, and vanadium) from
BWX Technologies' filter cake because they were not detected in the
leachate using the appropriate analytical test methods (see Table 1).
EPA believes that it is inappropriate to evaluate non-detectable
concentrations of a constituent of concern in its modeling efforts if
the non-detectable value was obtained using the appropriate analytical
method. If a constituent cannot be detected when using the appropriate
analytical method with an adequate detection limit, EPA assumes that
the constituent is not present and, therefore, does not present a
threat to human health or the environment.
EPA also evaluated the potential hazards of the organic
constituents detected in the TCLP leachate of BWX Technologies' filter
cake. The maximum reported leachate concentrations of acetone and
methylene chloride yielded compliance point concentrations well below
the health-based levels used in delisting decision-making.
After reviewing BWX Technologies' process information, EPA
concluded that no other hazardous constituents of concern, other than
those tested for, are likely to be present in the filter cake, and that
any migration of constituents from the waste would result in
concentrations below delisting health-based levels of concern. In
addition, on the basis of test results and information provided by BWX
Technologies pursuant to 40 CFR 260.22, EPA concludes that the
petitioned waste does not exhibit any of the characteristics of
ignitability, corrosivity, reactivity or toxicity.
During the evaluation of BWX Technologies' petition, EPA also
considered the potential impact of the petitioned wastes via non-ground
water routes (i.e., air emission and surface runoff). With regard to
airborne dispersion in particular, EPA believes that exposure to
airborne contaminants from BWX Technologies' petitioned waste is
unlikely. Therefore, no appreciable air releases are likely from BWX
Technologies' waste under any likely disposal conditions. EPA evaluated
the potential hazards resulting from the unlikely scenario of airborne
exposure to hazardous constituents released from BWX Technologies'
waste in an open landfill. The results of this worst-case analysis
indicated that there is no substantial present or potential hazard to
human health and the environment from airborne exposure to constituents
from BWX Technologies' filter cake. A description of EPA's assessment
of the potential impact of BWX Technologies' waste, regarding airborne
dispersion of waste contaminants, is presented in the RCRA public
docket for today's proposed rule.
EPA also considered the potential impact of the petitioned waste
via a surface water route. EPA believes that containment structures at
municipal solid waste landfills can effectively control surface water
runoff, as the Subtitle D regulations (See 56 FR 50978, October 9,
1991) prohibit pollutant discharges into surface waters. Furthermore,
the concentrations of any hazardous constituents dissolved in the run-
off will tend to be lower than the levels in the TCLP leachate analyses
reported in today's notice due to the aggressive acidic medium used for
extraction in the TCLP. EPA believes that, in general, leachate derived
from the wastes is unlikely to directly enter a surface water body
without first traveling through the saturated subsurface where dilution
and attenuation of hazardous constituents will also occur. Leachable
concentrations provide a direct measure of solubility of a toxic
constituent in water and are indicative of the fraction of the
constituent that may be mobilized in surface water as well as ground
water.
Based on the reasons discussed above, EPA believes that the
contamination of surface water through runoff from the waste disposal
area is very unlikely. Nevertheless, EPA evaluated the potential
impacts on surface water if BWX Technologies' waste were released from
a municipal solid waste landfill through runoff and erosion. (See
``Docket Report on Evaluation of Contaminant Releases to Surface Water
from BWX Technologies' Petitioned Waste,'' April 1999, in the RCRA
public docket for today's proposed rule.) The estimated levels of the
hazardous constituents of concern in surface water would be well below
health-based levels for human health, as well as below EPA Recommended
Chronic Water Quality Criteria for aquatic organisms (63 FR 68354
(December 10, 1998)). EPA, therefore, concluded that BWX Technologies'
filter cake is not a substantial present or potential hazard to human
health and the environment via the surface water exposure pathway.
E. Conclusion
EPA believes that the descriptions of BWX Technologies' hazardous
waste process and analytical characterization, in conjunction with the
proposed verification testing requirements (as discussed later in this
notice), provide a reasonable basis to grant BWX Technologies' petition
for an exclusion of the filter cake. The EPA believes the data
submitted in support of the petition show BWX Technologies' process can
render the filter cake non-hazardous. EPA has reviewed the sampling
procedures used by BWX Technologies and has determined they satisfy EPA
[[Page 42324]]
criteria for collecting representative samples for purposes of
characterizing the filter cake. The data submitted in support of the
petition show that constituents in BWX Technologies' waste are present
below health-based levels used in the delisting decision-making. EPA
believes that BWX Technologies has successfully demonstrated that the
filter cake is non-hazardous.
EPA, therefore, proposes to grant an exclusion to BWX Technologies
for the filter cake from its pickle acid treatment system described in
its petition as EPA Hazardous Waste No. F006. If made final, the
proposed exclusion will apply only to 300 cubic yards of petitioned
waste generated annually, on a calendar year basis. The facility must
treat waste generated in excess of 300 cubic yards per year as
hazardous. If either the manufacturing or treatment processes are
altered such that an adverse change in waste composition occurs (e.g.,
higher levels of hazardous constituents are present in the waste), this
exclusion is no longer valid.
Although management of the waste covered by this petition would be
removed from Subtitle C jurisdiction upon final promulgation of an
exclusion, this exclusion applies only if this waste is disposed of in
a Subtitle D landfill which is permitted, licensed, or registered by a
State to manage municipal or industrial solid waste, a permitted
Subtitle C landfill or a Subtitle C landfill which is operating under
interim status.
F. Verification Testing Conditions
(1) Delisting Levels: All leachable concentrations for the
following constituents measured using SW-846 method 1311 (the TCLP)
must not exceed the following levels (mg/l).
(a) Inorganic constituents--Antimony-0.6; Arsenic-5.0; Barium-100;
Beryllium-0.4; Cadmium-0.5; Chromium-5.0; Cobalt-210; Copper-130; Lead-
1.5; Mercury-0.2; Nickel-70; Silver-5.0; Thallium-0.2; Tin-2100; Zinc-
1000; Fluoride-400.
(b) Organic constituents--Acetone-400; Methylene Chloride-0.5.
BWX Technologies must test its filter cake by determining the
levels of constituents in the TCLP leachate. Below these levels (also
known as the Maximum Allowable Leachate (MAL) Concentrations), the
filter cake would be considered non-hazardous. This exclusion is
effective when the final rule is signed by the Regional Administrator.
If the annual testing of the filter cake does not meet the delisting
levels or MALs described in Paragraph 1 of this Section, the facility
must notify the Agency according to the provisions in Paragraph 4 of
this Section. In such case, the exclusion will be suspended until a
decision is reached by the Agency. The facility shall provide sampling
results which support the rationale that the delisting exclusion should
not be withdrawn. EPA selected the set of inorganic and organic
constituents specified in Paragraph 1 of this Section after reviewing
information about the composition of the waste, descriptions of BWX
Technologies' treatment process, and previous test data provided for
the filter cake. EPA established the proposed delisting levels for this
Paragraph by back-calculating MAL concentrations from the health-based
levels (HBLs) for the constituents of concern using the EPACML model
previously described and a DAF of 100 (see, previous discussions in
Section D--Agency Evaluation). These delisting levels correspond to the
allowable levels measured in the TCLP extract of the waste.
(2) Verification testing schedule: BWX Technologies must analyze a
representative composite sample of the filter cake from the pickle acid
treatment system on an annual, calendar year basis using methods with
appropriate detection levels and quality control procedures. If the
level of any constituent measured in the sample of filter cake exceeds
the levels set forth in Paragraph 1 of this Section, then the waste is
hazardous and must be managed in accordance with Subtitle C of RCRA.
Data from the annual verification testing must be submitted to EPA
within 60 days of the sampling event.
(3) Changes in Operating Conditions: If BWX Technologies
significantly changes the manufacturing or treatment process described
in the petition, or the chemicals used in the manufacturing or
treatment process, BWX Technologies may not manage the filter cake
generated from the new process under this exclusion until it has met
the following conditions: (a) BWX Technologies must demonstrate that
the waste meets the delisting levels set forth in Paragraph 1 of this
Section; (b) it must demonstrate that no new hazardous constituents
listed in Appendix VIII of Part 261 have been introduced into the
manufacturing or treatment process; and (c) it must obtain prior
written approval from EPA to manage the waste under this exclusion.
This condition allows BWX Technologies the flexibility to modify its
process (e.g., changes in equipment or operating conditions). However,
if any significant change is made which may affect the composition of
the waste, BWX Technologies must demonstrate that the waste continues
to meet the delisting criteria and must obtain prior written approval
from EPA.
(4) Data Submittals: The data obtained under Paragraphs 2 and 3 of
this Section must be submitted to The Waste and Chemicals Management
Division, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA
19103. Records of operating conditions and analytical data must be
compiled, summarized, and maintained on site for a minimum of five
years and must be furnished upon request by EPA or the Commonwealth of
Virginia, and made available for inspection. Failure to submit the
required data within the specified time period or to maintain the
required records on site for the specified time period will be
considered by EPA, at its discretion, sufficient basis to revoke the
exclusion to the extent determined necessary by EPA. All data must be
accompanied by a signed copy of the certification statement set forth
in 40 CFR 260.22(i)(12) to attest to the truth and accuracy of the data
submitted. Although management of the wastes covered by this petition
would not be subject to Subtitle C jurisdiction upon final promulgation
of an exclusion, the generator of a 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 treatment, storage, or disposal
facility. In either case, the facility must be permitted, licensed, or
registered by a State to manage municipal or industrial solid waste.
The generator may also elect to continue to manage the delisted waste
in a facility with a permit or interim status under Subtitle C.
(5) Reopener:
(a) If BWX Technologies 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 BWX Technologies 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) of this
Section, regardless of its source, the Regional Administrator or his
delegate will determine whether the reported condition requires further
action. Further action may include repealing the exclusion, modifying
the exclusion, or other appropriate response necessary to protect human
health and the environment.
The purpose of Paragraph 5 of this Section is to require BWX
Technologies
[[Page 42325]]
to disclose new or different information related to a condition at the
facility or disposal of the waste if it had or has bearing on the
delisting. This will allow EPA to reevaluate the exclusion if new or
additional information is provided to the Agency by BWX Technologies
which indicates that information on which EPA's decision was based was
incorrect or circumstances have changed such that the information
evaluated for the delisting is no longer correct or would cause EPA to
deny the petition if then presented. Further, although this provision
expressly requires BWX Technologies to report differing site conditions
or assumptions used in the petition within 10 days of discovery, if EPA
discovers such information itself or from a third party, EPA will act
upon such information as appropriate. The language being proposed is
similar to those provisions found in RCRA regulations governing no-
migration petitions located at 40 CFR 268.6. EPA has recognized that
current delisting regulations contain no express procedure for
reopening a decision if additional information is received and although
it believes that it has the authority under RCRA and the Administrative
Procedures Act, 5 U.S.C. 551 (1978), et seq. (APA), to take this
action, EPA believes that a clear statement of its authority in the
context of delistings is merited in light of Agency experience. Until
such time as EPA codifies an express reopener provision in the
exclusion regulations, EPA will include language similar to that
presented above in delistings. EPA is considering the inclusion of a
more specific regulatory process both defining when a delisting should
be reopened and the result of reopening a granted exclusion and is
soliciting comments on this process. Since each delisting is waste-
specific and facility-specific or process-specific, EPA is currently
reluctant to adopt a rule which might inadvertently cause an immediate
repeal where specific circumstances would not merit so precipitous a
result. In the meantime, in the event that an immediate threat to human
health or the environment presents itself, EPA will continue to rely on
its authority under the APA to make a good cause finding to justify an
emergency rulemaking suspending notice and comment. APA Section 553(b).
(6) Notification Requirements: BWX Technologies 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 be deemed to be
a violation of this exclusion and may result in a revocation of the
decision.
III. Effect on State Authorizations
This proposed exclusion, if promulgated, would be issued under the
Federal RCRA delisting program. States, however, may impose more
stringent regulatory requirements than EPA, 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 State regulatory authorities to determine the
current status of their wastes under the State laws.
Furthermore, some States are authorized to administer a delisting
program in lieu of the Federal program (i.e., to make their own
delisting decisions). Therefore, this proposed exclusion, if
promulgated, may not apply in those authorized States. If the
petitioned waste will be transported to any State with delisting
authorization, BWX Technologies must obtain delisting authorization
from that State before the waste may be managed as nonhazardous in that
State.
IV. Effective Date
This rule, if made final, will become effective immediately upon
such final publication. 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, if finalized, would reduce the existing requirements
for a facility generating hazardous wastes. In light of the unnecessary
hardship and expense that would be imposed on this petitioner by an
effective date six months after publication and the fact that a six-
month deadline is not necessary to achieve the purpose of Section 3010,
EPA believes that this exclusion should be effective immediately upon
final publication. These reasons also provide a basis for making this
rule effective immediately, upon final publication, under the
Administrative Procedures Act, 5 U.S.C. 553(d).
V. Regulatory Planning and Review (Executive Order 12866)
Under Executive Order 12866, EPA must determine whether a
regulatory action is ``significant'' and, therefore, subject to OMB
review and the other provisions of the Executive Order. A ``significant
regulatory action'' is one that is likely to result in a rule that may:
(1) have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in Executive Order
12866.
Pursuant to Executive Order 12866 it has been determined that this
rule is not a ``significant regulatory action'' and is therefore not
subject to OMB review.
VI. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act(5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996) 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 effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency or delegated representative certifies the rule will not have
a significant economic impact on a substantial number of small
entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
Agencies to provide a statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small entities. This rule, if promulgated, will
not have an adverse economic impact on small entities since its effect
would be to reduce the overall costs of EPA's hazardous waste rules.
Accordingly, I hereby certify that this rule will not have a
significant economic impact on a substantial number of small entities.
This rule, therefore, does not require a regulatory flexibility
analysis.
[[Page 42326]]
VII. Paperwork Reduction Act
Information collection and record-keeping requirements associated
with this proposed rule have been approved by the Office of Management
and Budget (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
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under Section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, Section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of Section 205
do not apply when they are inconsistent with applicable law. Moreover,
Section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
Section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's proposed rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local, or
tribal governments or the private sector. The proposed delisting
decision is deregulatory, and imposes no enforceable duty on any State,
local or tribal governments or the private sector. Thus, today's rule
is not subject to the requirements of Sections 202 and 205 of the UMRA.
In addition, EPA has determined that this proposed rule contains no
regulatory requirements that might significantly or uniquely affect
small governments and, therefore, no small government agency plan is
required under Section 203 of the UMRA.
IX. Children's Health Protection
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) is determined to be ``economically significant''
as defined under E.O. 12866, and (2) concerns an environmental health
or safety risk that EPA has reason to believe may have 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 proposed rule is not subject to Executive Order 13045 because
it is not economically significant as defined in E.O. 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children.
X. Intergovernmental Partnership
Under Executive Order 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, or EPA consults with those governments. If EPA complies by
consulting with these governments, Executive Order 12875 requires EPA
to provide to the Office of Management and Budget a description of the
extent of EPA's prior consultation with representatives of affected
State, local and tribal governments, the nature of their concerns, any
written communications from the governments, and a statement supporting
the need to issue the regulation. In addition, Executive Order 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 proposed rule does not create a mandate on State, local or
tribal governments. The proposed rule does not impose any enforceable
duties on these entities. Accordingly, the requirements of Section 1(a)
of Executive Order 12875 do not apply.
XI. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272)
directs EPA 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, and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This rulemaking 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 proposed rule.
XII. Consultation and Coordination with Indian Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly 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, or EPA consults with those
governments. If EPA complies by consulting with these governments,
Executive Order 13084 requires EPA to provide to the Office of
Management and Budget, 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, Executive Order 13084
requires EPA to develop an effective process permitting elected
officials and other 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.''
[[Page 42327]]
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. There is no impact to tribal
governments as the result of today's proposed delisting decision.
Accordingly, the requirements of Section 3(b) of Executive Order 13084
do not apply to this proposed rule.
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: July 26, 1999.
Stanely Laskowski,
Acting Regional Administrator, Region III.
For the reasons set out in the preamble, 40 CFR Part 261 is
proposed 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. Table 1 of Appendix IX of Part 261 is amended to 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
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
BWX Technologies......................... Lynchburg, VA........................... Wastewater treatment sludge
from electroplating
operations (EPA Hazardous
Waste No. F006) generated
at a maximum annual rate
of 300 cubic yards per
year, after (insert
publication date of the
final rule), and disposed
of in a Subtitle D
landfill.
BWX Technologies must meet
the following conditions
for the exclusion to be
valid:
(1) Delisting Levels: All
leachable concentrations
for the following
constituents measure using
the SW-846 method 1311
(the TCLP) must not exceed
the following levels (mg/
l).
(a) Inorganic constituents--
Antimony-0.6; Arsenic-5.0;
Barium-100; Beryllium-0.4;
Cadmium-0.5; Chromium-5.0;
Cobalt-210; Copper-130;
Lead-1.5; Mercury-0.2;
Nickel-70; Silver-5.0;
Thallium-0.2; Tin-2100;
Zinc-1000; Fluoride-400.
(b) Organic constituents--
Acetone-400; Methylene
Chloride-0.5.
(2) Verification testing
schedule: BWX Technologies
must analyze a
representative sample of
the filter cake from the
pickle acid treatment
system on an annual,
calendar year basis using
methods with appropriate
detection levels and
quality control
procedures. If the level
of any constituent
measured in the sample of
filter cake exceeds the
levels set forth in
Paragraph 1, then the
waste is hazardous and
must be managed in
accordance with Subtitle C
of RCRA. Data from the
annual verification
testing must be submitted
to EPA within 60 days of
the sampling event.
(3) Changes in Operating
Conditions: If BWX
Technologies significantly
changes the manufacturing
or treatment process
described in the petition,
or the chemicals used in
the manufacturing or
treatment process, BWX
Technologies may not
manage the filter cake
generated from the new
process under this
exclusion until it has met
the following conditions:
(a) BWX Technologies must
demonstrate that the waste
meets the delisting levels
set forth in Paragraph 1;
(b) it must demonstrate
that no new hazardous
constituents listed in
Appendix VIII of Part 261
have been introduced into
the manufacturing or
treatment process; and (c)
it must obtain prior
written approval from EPA
to manage the waste under
this exclusion.
(4) Data Submittals: The
data obtained under
Paragraphs 2 and 3 must be
submitted to The Waste and
Chemicals Management
Division, U.S. EPA Region
III, 1650 Arch Street,
Philadelphia, PA 19103.
Records of operating
conditions and analytical
data must be compiled,
summarized, and maintained
on site for a minimum of
five years and must be
furnished upon request by
EPA or the Commonwealth of
Virginia, and made
available for inspection.
Failure to submit the
required data within the
specified time period or
to maintain the required
records on site for the
specified time period will
be considered by EPA, at
its discretion, sufficient
basis to revoke the
exclusion to the extent
determined necessary by
EPA. All data must be
accompanied by a signed
copy of the certification
statement set forth in 40
CFR Sec. 260.22(i)(12) to
attest to the truth and
accuracy of the data
submitted.
(5) Reopener:
(a) If BWX Technologies
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 BWX
Technologies 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) of this
section, regardless of its
source, the Regional
Administrator or his
delegate will determine
whether the reported
condition requires further
action. Further action may
include repealing the
exclusion, modifying the
exclusion, or other
appropriate response
necessary to protect human
health and the
environment.
[[Page 42328]]
(6) Notification
Requirements: BWX
Technologies 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 be
deemed to be a violation
of this exclusion and may
result in a revocation of
the decision.
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[FR Doc. 99-20040 Filed 8-3-99; 8:45 am]
BILLING CODE 6560-50-P