[Federal Register Volume 67, Number 10 (Tuesday, January 15, 2002)]
[Rules and Regulations]
[Pages 1888-1896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-953]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-7125-1]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA (also, ``the Agency'' or ``we'' in this preamble) is 
granting a delisting to Heritage Environmental Services, LLC (Heritage) 
to exclude treated Electric Arc Furnace Dust (EAFD) produced at Nucor 
Steel, Division of Nucor Corporation (Nucor) located in Crawfordsville, 
Indiana from the lists of hazardous wastes.
    After careful analysis, the EPA has concluded that the petitioned 
waste is not a hazardous waste when disposed of in a Subtitle D 
landfill. Today's action conditionally excludes the petitioned waste 
from the requirements of the hazardous waste regulations under the 
Resource Conservation and Recovery Act (RCRA) only if the waste is 
disposed of in a Subtitle D landfill which is permitted, licensed, or 
registered by a State to manage industrial solid waste.

EFFECTIVE DATE: This rule is effective on January 15, 2002.

ADDRESSES: The RCRA regulatory docket for this final rule is located at 
the U.S. EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60604, and is 
available for viewing from 8:00 a.m. to 4:00 p.m., Monday through 
Friday, excluding federal holidays. Call Todd Ramaly at (312) 353-9317 
for appointments. The public may copy material from the regulatory 
docket at $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For technical information concerning 
this document, contact Todd Ramaly at the address above or at (312) 
353-9317.

SUPPLEMENTARY INFORMATION: The information in this section is organized 
as follows:

I. Background
    A. What Is a Delisting Petition?
    B. What Regulations Allow a Waste to Be Delisted?
II. Heritage's Delisting Petition
    A. What Waste Did Heritage Petition EPA to Delist?
    B. What Information Must the Petitioner Supply?
    C. What Information Did Heritage Submit to Support This 
Petition?
III. EPA's Evaluation and Final Rule
    A. What Decision Is EPA Finalizing and Why?
    B. What Are the Terms of This Exclusion?
    C. When Is the Delisting Effective?
    D. How Does This Action Affect the States?
IV. Public Comments Received on the Proposed Exclusion
    A. Comments and Responses from EPA
V. Regulatory Impact
VI. Congressional Review Act
VII. Executive Order 12875

I. Background

A. What Is a Delisting Petition?

    A delisting petition is a request from to exclude waste from the 
list of hazardous wastes under RCRA regulations. In a delisting 
petition, the petitioner must show that waste generated at a particular 
facility does not meet any of the criteria for which EPA listed the 
waste as set forth in 40 CFR 261.11 and the background document for the 
waste. In addition, a petitioner must demonstrate that the waste does 
not exhibit any of the hazardous waste characteristics (that is, 
ignitability, reactivity, corrosivity, and toxicity) and must present 
sufficient information for us to decide whether factors other than 
those for which the waste was listed warrant retaining it as a 
hazardous waste.
    A petitioner remains obligated under RCRA to confirm that the waste 
remains nonhazardous based on the hazardous waste characteristics even 
if EPA has ``delisted'' the waste.

B. What Regulations Allow a Waste To Be Delisted?

    Under 40 CFR 260.20 and 260.22, a person may petition the EPA to 
remove

[[Page 1889]]

waste at a particular generating facility from hazardous waste control 
by excluding the waste from the lists of hazardous wastes contained in 
Secs. 261.31 and 261.32. Specifically, Sec. 260.20 allows any person to 
petition the EPA to modify or revoke any provision of parts 260 through 
266, 268, and 273 of Title 40 of the Code of Federal Regulations. 
Section 260.22 provides a person the opportunity to petition the EPA to 
exclude a waste on a ``generator specific'' basis from the hazardous 
waste lists.

II. Heritage's Delisting Petition

A. What Waste Did Heritage Petition EPA to Delist?

    On August 3, 1999, Heritage petitioned EPA to exclude an annual 
volume of 30,000 cubic yards of K061 EAFD generated at Nucor Steel 
Corporation located in Crawfordsville, Indiana from the list of 
hazardous wastes contained in 40 CFR 261.32. K061 is defined as 
``emission control dust/sludge from the primary production of steel in 
electric arc furnaces.''

B. What Information Must the Petitionor Supply?

    Petitioners must provide sufficient information to allow the EPA to 
determine that the waste does not meet any of the criteria for which it 
was listed as a hazardous waste. In addition, where there is a 
reasonable basis to believe that factors other than those for which the 
waste was listed (including additional constituents) could cause the 
waste to be hazardous, the EPA must determine that such factors do not 
warrant retaining the waste as hazardous.

C. What Information Did Heritage Submit To Support This Petition?

    To support its petition, Heritage submitted descriptions and 
schematic diagrams of the EAFD treatment system; and detailed chemical 
and physical analyses of the treated EAFD.

III. EPA's Evaluation and Final Rule

A. What Decision Is EPA Finalizing and Why?

    Today the EPA is finalizing an exclusion to Heritage for a 30,000 
cubic yards annual volume of K061 EAFD generated at the Nucor Steel 
facility in Crawfordsville, Indiana and treated by Heritage from the 
list of hazardous wastes.
    Heritage petitioned EPA to exclude, or delist, the treated EAFD 
because Heritage believes that the petitioned waste does not meet the 
RCRA criteria for which it was listed and that there are no additional 
constituents or factors which could cause the waste to be hazardous. 
Review of this petition included consideration of the original listing 
criteria, as well as the additional factors required by the Hazardous 
and Solid Waste Amendments of 1984 (HSWA). See section 222 of HSWA, 42 
United States Code (U.S.C.) 6921(f), and 40 CFR 260.22 (d)(2)-(4).
    On December 5, 2000, EPA proposed to exclude or delist Heritage's 
treated EAFD from the list of hazardous wastes in 40 CFR 261.32 and 
accepted public comment on the proposed rule (65 FR 75897). EPA 
considered all comments received, and for reasons stated in both the 
proposal and this document, we believe that the treated waste generated 
at the Nucor facility should be excluded from hazardous waste control.

B. What Are the Terms of This Exclusion?

    Heritage must dispose of the treated EAFD in a Subtitle D landfill 
which has groundwater monitoring and which is permitted, licensed, or 
registered by a state to manage industrial waste. This exclusion is 
valid for a maximum annual rate of 30,000 cubic yards per year. Any 
amount exceeding this volume is not delisted under this exclusion. This 
exclusion is effective only if all conditions contained in today's rule 
are satisfied.

C. When Is the Delisting Effective?

    This rule is effective January 15, 2002. 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. This rule 
reduces rather than increases the existing requirements and, therefore, 
is effective immediately upon publication under the Administrative 
Procedure Act, pursuant to 5 U.S.C. 553(d).

D. How Does This Action Affect the States?

    Because EPA is issuing today's exclusion under the federal RCRA 
delisting program, only states subject to federal RCRA delisting 
provisions would be affected. This exclusion may not be effective in 
states having a dual system that includes federal RCRA requirements and 
their own requirements, or in states which have received our 
authorization to make their own delisting decisions.
    EPA allows states to impose their own non-RCRA regulatory 
requirements that are more stringent than EPA's, under section 3009 of 
RCRA. These more stringent requirements may include a provision that 
prohibits a federally issued exclusion from taking effect in the state. 
Because a dual system (that is, both federal (RCRA) and state (non-RCRA 
programs) may regulate a petitioner's waste, we urge petitioners to 
contact the state regulatory authority to establish the status of their 
wastes under the state law.
    EPA has also authorized some states to administer a delisting 
program in place of the federal program, that is, to make state 
delisting decisions. Therefore, this exclusion does not apply in those 
authorized states. If Heritage transports the petitioned waste to or 
manages the waste in any state with delisting authorization, Heritage 
must obtain a delisting from that state before it can manage the waste 
as nonhazardous in the state.

IV. Public Comments Received on the Proposed Exclusion

A. Comments and Responses From EPA

    Comment: The DRAS is a more realistic model than any of its 
predecessors.
    Response: EPA agrees with the comment.
    Comment: EPA has stated that it believes the CML model is 
appropriate when evaluating whether to delist a waste, and has used the 
CML model as recently as the proposed delisting of August 8, 2000 and 
the final delisting of May 16, 2000.
    Response: Region 5 believes that the delisting risk assessment 
software (DRAS) is a more sophisticated and more appropriate model and 
is now applying this model to all petitions currently under review.
    Comment: The September 27, 2000 and December 5, 2000 Federal 
Registers did not indicate that the DRAS has been adopted by all EPA 
Regions, nor that it would be used in the future.
    Response: At this time all Regions are using the DRAS model.
    Comment: The model should be peer reviewed and the public should 
have the opportunity to provide adequate and meaningful comment.
    Response: The model has been peer reviewed. The public has the 
opportunity to submit comments on the DRAS model during the comment 
period each time a delisting is proposed which is based on the DRAS 
model.
    Comment: EPA is continuing to use the model before completing its 
own review of comments received. The DRAS may not be appropriate since 
it is currently being commented upon & revised.
    Response: The Agency is continually striving to improve the tools 
available

[[Page 1890]]

for assessing risk. The Agency believes that at this time the DRAS 
model is the best available tool for estimating risk. Revisions and 
improvements to the model are always possible in the future.
    Comment: The DRAS model assumes that the landfill is unlined and 
that leaching occurs from the beginning, which is counter to the use of 
liners, covers & slurry walls. The assumption of no liner is not 
consistent with CMTP which assumes a liner. The DRAS model should allow 
for the option of including a liner and should use Subtitle D landfill 
characteristics.
    Response: There are existing solid waste landfills which have no 
liner. Over time, liners may fail and delistings currently have no 
expiration date. Therefore it is reasonable to consider scenarios for 
liner failure or to assume that no liner exists.
    Comment: The DRAS model assumption of minimal cover increases 
estimates of volatilization and particulate emissions, which may not be 
reasonable.
    Response: We must consider the worst case scenario of minimal 
requirements for daily cover. Regulations requiring daily cover on 
municipal landfills do not necessarily apply to industrial solid waste 
landfills.
    Comment: The DRAS model is inflexible because site specific factors 
like hydrogeology, climate, ecology, and population density cannot be 
incorporated. The model should be modified to allow for the input of 
site and contaminant specific criteria. State or regional modeling 
criteria may be more stringent than the CMTP and have been ignored.
    Response: At this time the Agency is not able to consider such site 
specific factors. The DRAS model is based on national averages of these 
factors and is intended to model a reasonable worst case. A State may 
always impose more stringent requirements based on site-specific 
factors.
    Comment: DRAS is complex and EPA must explain the models and risk 
processes used in establishing regulatory limits including the 
assumptions, methodologies, pathways and variables used in the DRAS 
model.
    Response: The DRAS Technical Support Document (DTSD) explains the 
risk algorithms used in the model including the methodologies, 
variables, pathways and assumptions. The DTSD is available on line at 
http://www.epa.gov/earth1r6/6pd/rcra__c/pd-o/dtsd.htm.
    Comment: Several assumptions used in the DRAS model are unlikely 
and unreasonable: (1) A receptor lives and works at a single location 
100 m downgradient and is exposed 350 days/yr; (2) individuals are 
exposed to the 90th percentile level for all paths; (3) all media flow 
toward the receptor; (4) the landfill volume and conditions from 1987 
are still valid; (5) the waste is placed uniformly at great depth over 
the whole landfill; (6) only the most sensitive pathway for each 
constituent is selected which is an unlikely scenario; (7) first order 
decay applies although processes of oxidation, hydrolysis and 
biodegredation are not considered separately; (8) transformation rate 
may not be reasonable for biological processes; (9) fate and leaching 
estimates should include parameter estimates including Kow, pKa, 
Henry's Law and potential for biological transformation; (10) all 
streams are fishable and representative; and (11) nickel has a fish BCF 
of 307 which is unsupported by peer review publications and EPA's own 
documents.
    Response: (1,2) The DRAS employs standard risk assessment default 
parameters that are accepted throughout the Agency in risk analyses 
(i.e., residential exposure 350 days/yr, and selection of the 90th 
percentile). The Agency has no way of knowing that this situation will 
not occur and therefore deems it prudent to protect for this condition 
by adding risks. (3) The Agency has no way of knowing the direction of 
media flow and must assume that all media flow may move toward the 
receptor. (4) The Agency has no data to indicate that the landfill 
volume data and other data from the 1987 landfill survey report are not 
valid. When updated data are available, they will be incorporated into 
the analyses. (5) To maximize the impact of the waste, the model 
assumes uniform placement of the waste. (6) The DRAS does employ a 
conservative approach to exposure assessment by assuming the receptor 
may be exposed to both the most sensitive groundwater pathway and the 
most sensitive surface exposure pathway and selects the most sensitive 
pathway for each constituent. (7,8) The groundwater fate and transport 
model used by the Agency to determine first order decay is EPA's 
Composite Model for Leachate Migration with Transformation Products 
(CMTP). The information used to develop the first order decay rate for 
different chemicals in CMTP is based on studies in which the separate 
processes of oxidation, biodegradation and hydrolysis could not be 
further isolated. The transformation rates cannot be easily adjusted 
because they are based on these empirical studies rather than on 
theoretical modeling in which variables can be altered at will. This 
model has been peer reviewed and received an excellent review from the 
Science Advisory Board (SAB). The Agency will continue to support the 
use of EPACMTP until a better assessment tool becomes available. (9) 
The Kow and pKa (octonal water partition coefficient and ionization 
constant) are not used in the development of leaching estimates because 
the DRAS relies on test data from leach testing to estimate the 
leaching potential of the waste. The Henry's law constant, although 
used in other aspects of the DRAS, is not used in the estimate of 
leaching and fate in groundwater. At this time, the CMTP does not 
account for volatilization of constituents from the groundwater as it 
moves through the subsurface.
    (10) EPA assumed that all streams of sufficient size are fishable. 
This assumption is conservative, but not unreasonable as the final 
landfill location is not known. (11) The bioconcentration factor (BCF) 
for nickel has been revised from 307 to 78. The revised nickel BCF will 
be incorporated into the upcoming DRAS version 2.0.
    Comment: Current science suggests that the skin and respiratory 
tract are targets for soluble nickel salts, yet the model literature 
states that the critical effects are decreased organ and/or body 
weights.
    Response: The oral Reference Dose (RfD) is based on the assumption 
that thresholds exist for certain toxic effects such as cellular 
necrosis. It is expressed in units of mg/kg/day. Ambrose et al. (1976) 
reported the results of a 2-year feeding study using rats given 0, 100, 
1000 or 2500 ppm nickel (estimated as 0, 5, 50 and 125 mg Ni/kg/day) in 
the diet. Clinical signs of toxicity, such as lethargy, ataxia, 
irregular breathing, cool body temperature, salivation and discolored 
extremities, were seen primarily in the 100 mg/kg/day group; these 
signs were less severe in the 35 mg/kg/day group. Based on the results 
obtained in this study, the 5 mg/kg/day nickel dose was a no observable 
adverse effects level (NOAEL), whereas 35 mg/kg/day was a lowest 
observable adverse effects level (LOAEL) for decreased body and organ 
weights. For further information, please refer to the Agency's IRIS 
database.
    Comment: The bioconcentration factor (BCF) of 307 for nickel in 
fish is unsupported in EPA's own documents. Literature values are much 
less. BCF should not be used for predicting chronic toxicity. Some 
organs can regulate internal concentrations. Nickel has a low order of 
toxicity. Nickel does not bioaccumulate due to incomplete adsorption 
and rapid excretion. It is

[[Page 1891]]

Ni+2 , not the parent, that is persistent and bioavailable 
and determines toxicity.
    Response: The BCF for nickel has been revised to 78 and will be 
incorporated into DRAS version 2.0. This value is based on the 
geometric mean of 3 laboratory values (100, 100, 47). The studies used 
to derive the BCF for nickel are based on soluble nickel, which is 
present as the Ni+2 ion. The nickel concentration in the 
waste was assumed to be present as the Ni+2. The assumption 
is conservative, but not unreasonable since the nickel from the waste 
could be present as the Ni+2 ion at the point of exposure.
    Comment: In aquatic environs, much of the nickel is present as both 
ionic and stable organic complexes. Hence much of the nickel is 
insoluble with minimal bioavailability. Also, soil which contains high 
organic matter will adsorb nickel and limit its mobility.
    Response: The Agency agrees that some nickel may be insoluble, and 
have minimal bioavailability, since its mobility is dependent on the 
organic content of the soil. However, in delisting analyses, site 
specific characteristics (beyond waste constituent concentration and 
volume) are not incorporated into analyses. Default values are given 
for many parameters used in risk analyses including the organic content 
of fishable waters. The Agency has no way of knowing what streams may 
be impacted and, therefore, has established a conservative estimate of 
pertinent variables.
    Comment: MINTEQA2 has been reported to contain outdated and 
inaccurate thermodynamic estimates (e.g., for complexation of metals 
like cadmium that are dependent on disolved oxygen content (DOC and 
pH). Hence the model may not reasonably estimate speciation and 
mobility. EPA should confirm stoichiometry, speciation charge, formula 
weight, equilibrium and enthalpy estimates with regard to metal and 
organic ligands as risks from metal ion concentrations may be 
overestimated.
    Response: The Agency continues to review chemical-specific 
parameter data. Where appropriate, these data will be incorporated into 
the DRAS analyses.
    Comment: The model may estimate fate and transport concentrations 
that exceed water solubility.
    Response: If waste concentration exceeds soil saturation, free form 
conditions may occur and the assumptions of the EPACMTP may be 
compromised. Therefore, soil saturation values have been incorporated 
into DRAS and the program will notify the user if waste concentrations 
exceed soil saturation concentrations. Ambient water concentrations may 
be influenced by more than chemical solubility (e.g., organic content).
    Comment: The use of the NOAEL in Rfd calculations has been 
challenged by the SAB. The dose response relationship and the 
consistency in response level are not identified. Use of the NOAEL for 
regulatory limits is based more on experimental exposure design than on 
biological relevance.
    Response: The EPA still uses the NOAEL in Rfd. The SAB did not 
review the entire DRAS. The EPA risk assessors who peer reviewed the 
DRAS did not question the use of the NOAEL in Rfd. Until such time that 
the Agency redefines RfD methodology, the delisting program will 
continue to determine hazards based on RfDs recommended by EPA's IRIS 
database. The Agency continues to use RfDs in delisting determinations 
in a manner consistent with EPA risk assessment methodology. The EPA 
risk assessors and EPA ORD scientists who have peer reviewed the DRAS 
have not questioned the method in which RfDs are employed in the DRAS 
analyses.
    Comment: Terms should be more clearly defined. Does the term Cw for 
waste contamination account for the total mass of contamination in the 
waste or only that portion that may enter the aqueous phase and be 
transported into the unsaturated zone and/or the leachable portion?
    Response: No occurrences of Cw could be found in the DTSD or in the 
proposed exclusion. The term Cwaste is used twice in Chapter 4 of the 
DTSD to refer both to the total constituent concentration in a solid 
matrix in a landfill and to the total constituent concentration in a 
liquid in a surface impoundment.
    Comment: USEPA cited various regulatory and statutory sections such 
as Secs. 261.11(a)(3)(i) thru (xi) describing factors to consider in 
listing/delisting waste, but there was very little analysis of those 
factors. This prompts the conclusion that the USEPA is arbitrarily 
proposing to grant the HES petition.
    Response: All criteria in 40 CFR 261.11(a)(3) were considered in 
accordance with Sec. 260.22(d). The DRAS program was developed in 
consideration of all of the factors presented in 40 CFR 261.11(a)(3). 
Consitituent specific toxicology, chemical, and physical data are in 
the database used in the DRAS software as are appropriate models for 
evaluating migration and exposure. The DRAS is not currently capable of 
evaluating degradation products as described in 40 CFR 
261.11(a)(3)(iii) through (vi) and the risk posed by degradation 
products would typically be evaluated independently. The petitioned 
waste, however, did not contain any chemicals which have known 
degradation products and therefore this additional analysis was not 
necessary. EPA considered plausible types of improper management in 
accordance with Sec. 261.11(a)(3)(vii) when it assumed that 
contaminants will migrate from the landfill to a receptor well, 
uncontrolled erosion of exposed wastes will migrate into a stream, and 
long-term absence of daily cover will expose the waste to the 
atmosphere. Operating a facility in this manner is considered improper 
management as it violates the proper management standards and 
requirements promulgated for licensed Subtitle D landfills set forth in 
40 CFR parts 257 and 258.
    Comment: DRAS does not evaluate important ecological receptors 
which may significantly impact the back calculated maximum permissible 
waste concentrations derived from DRAS.
    Response: The DRAS model does include consideration of ecological 
impacts. A complete description of the screening for ecological impact 
is in Chapter 4 of the DTSD available on the internet at http://www.epa.gov/earth1r6/6pd/ rcra--c/pd-o/dtsd.htm.> The maximum observed 
lead and zinc in the petitioned waste exceeded the surface water 
screening values, indicating the need to examine the possible 
ecological impact more closely. The DRAS model does not account for the 
fact that some of the constituents in the eroded waste will not be 
dissolved. Since water quality criteria used for lead and zinc are 
based on dissolved concentrations, the total water concentration 
predicted by DRAS was conservative. Using conservative values published 
by EPA's Office of Water to convert total water concentrations to 
dissolved concentrations (30% for zinc and 20 % for lead), the surface 
water quality criteria were not exceeded.
    Comment: How does the model distinguish metals that are important 
for some animals?
    Response: If the commenter is referring to metals as 
micronutrients, delisting levels for metals far exceed any 
micronutrient levels.
    Comment: What criteria determine whether the allowable leachate 
concentration is set by the Safe Drinking Water Act (SDWA) Maximum 
Contaminant Level (MCL), DRAS calculation, treatment technology or 
toxicity characteristic level?
    Response: The allowable level is the most conservative of the DRAS

[[Page 1892]]

calculations, a calculation based on the SDWA MCL or the toxicity 
characteristic level. The exception to this is the level for arsenic 
which is frequently calculated based on the concentration allowed by 
the MCL.
    Comment: Does EPA policy require that MCL or surface water criteria 
be met? Does this policy apply at all downgradient distances or just 
those corresponding to the DAF?
    Response: Groundwater must meet MCL criteria but not surface water 
criteria. The DAF is used to calculate the concentration in the 
groundwater at a well a set distance downgradient. This distance was 
based on the results of a survey which identified the distance to the 
closest drinking water wells located near solid waste landfills 
throughout the country.
    Comment: Are maximum permissible levels set below background? 
Background levels for nickel are approximately 3.3 ppb freshwater; 2.1 
ppb groundwater; 4 to 30 mg/kg soil.
    Response: The Agency does not usually consider background levels 
when establishing delisting levels. The maximum allowable levels of 
nickel in the waste and in the TCLP leachate are not less than the 
values mentioned in the comment.
    Comment: The pH of landfill leachate is generally higher than the 
pH of the extraction fluid used in the TCLP which affects the 
leachability of the metals.
    Response: The leachability of this waste was measured using three 
different extraction fluids with pH values of 2.88, 6.5, and 12.0 to 
evaluate whether the waste leachability will be affected by the pH of 
various environments.
    Comment: The duration of leaching 18 minutes or 18 hours may over 
or underestimate the leachability of some constituents. TCLP does not 
account for variations in time to equilibrium for different species. 
The TCLP under predicts the maximum concentation of some anions and 
does not account for a variety of processes that can affect leachate 
quality, quantity and migration.
    Response: It is impossible to determine the optimum time or other 
factors necessary to maximize the leaching of each constituent in every 
matrix in any environmental condition. A considerable amount of time 
and effort went into the development of the TCLP and the Agency 
believes that it is a reasonable laboratory test and that the TCLP 
results generally correlate well with environmental measurements.
    Comment: Does the TCLP account for DOC? DOC in the leachate affects 
the mobility of metals in the aquifer.
    Response: The TCLP does not account for DOC. However, in performing 
the TCLP procedure using alternative extraction fluids, Heritage took 
steps to remove dissolved oxygen from the neutral and basic extraction 
fluids. See proposed rule, 65 FR 75900, December 5, 2000.
    Comment: It may be appropriate for the Agency to consider data from 
the SPLP.
    Response: The Agency would consider any additional data that the 
petitioner chooses to submit. At this time the Agency requires leach 
testing for stabilized waste using the TCLP procedure at three 
different pHs. The Agency also evaluates data from the multiple 
extraction procedure. During the development of the sampling and 
analysis plan for a delisting petition, the Agency and petitioner 
discuss which analytical methods are appropriate for characterizing the 
waste.
    Comment: For chemicals not previously modeled with the EPACMTP, 
what is the effect of assuming a DAF of 18?
    Response: The Dilution Attenuation Factor (DAF) of 18 is a 
conservative value determined by the EPACMTP fate and transport model 
for the landfill waste management scenario. The DAF of 18 represents 
the class of organic chemicals with non-degrading, non-sorbing, 
characteristics. When creating a chemical to add to the DRAS chemical 
library for use in DRAS analyses, we recommend using a conservative 
value.
    Comment: What is the effect of using one half detection level or 
zero for non detects?
    Response: The use of one half the detection level is a compromise 
between the use of zero and the use of the detection limit. Using one 
half of the detection level protects against inappropriately high 
detection levels.
    Comment: The model does not account for the uncertainty or 
sensitivity estimate. Without a sensitivity analysis it is impossible 
to determine if a single pathway or a small number of pathways dominate 
the risk estimate. If data for most sensitive parameter is uncertain or 
limited, confidence in the result will be poor.
    Response: The DRAS provides the forward-calculated risk level and 
back-calculated allowable waste concentration for each exposure 
pathway. The user is thereby able to determine which pathway or 
pathways dominate the estimate of risk for each chemical. These 
analyses are currently provided on the Chemical-Specific Results 
screen.
    Comment: The model determines that ground concentrations and a 
theoretical drinking water well that is 90th percentile of all 
predicted concentrations from Monte Carlo analysis. What is the 
sensitivity of using the 50th percentile on release and risk estimates?
    Response: The DRAS assessment always defaults to high-end values 
from the 90th percentile. The model was not run using the 50th 
percentile, so it is not possible to determine the sensitivity at the 
50th percentile.
    Comment: Does a hazard index (HI) of greater than one mean that the 
waste cannot be delisted, or does it indicate that the model is overly 
conservative?
    Response: An HI of one does not mean that the waste cannot be 
delisted, but a more thorough evaluation of the waste will be 
necessary. In cases where the HI of the waste exceeds one, the Agency 
will evaluate the target organ for the critical effect of those 
chemicals contributing to the total HI. In some cases, the hazards 
associated with various chemicals in the waste result from effects to 
the same target organ, and are indeed additive. In other cases, the 
hazards of different chemicals impact different target organs, and are 
not additive, in which case the HI is lowered accordingly. The DRAS 
automatically assumes the conservative approach, summing all hazards to 
calculate the HI.
    Comment: EPA has rationalized the exceedance of its own delisting 
program target risk level of 1  x  10-6 by reference to the 
cancer risk range of 1  x  10-4 to 1  x  10-6 
acceptable in other programs. Although this risk range may be 
appropriate in the context of corrective action, it may not be 
warranted in the delisting program where the waste is yet to be 
generated and placed into the environment.
    Response: This risk is within the target risk range in the 
delisting program of 1  x  10-4 to 1  x  10-6. 
The commentor is referred to chapter 4 of the DRAS DTSD which states 
that the target risk range is 1  x  10-4 to 1  x  
10-6. Attachment A of the RCRA Delisting Program Guidance 
Manual for the Petitioner also states that the target risk range is 1 
x  10-4 to 1  x  10-6.
    Comment: Definition of the criteria used to determine de minimis 
risk levels and risk estimates should be provided. De minimis risk is 
usually considered to be a risk of less than 10-6 or 1 in a 
million.
    Response: The term de minimis risk is used to refer to a risk that 
is sufficiently low that it need not be considered. The commentor is 
correct that a de minimis risk is usually considered by regulatory 
agencies to be a risk at or below 10-6 over a 70 year life 
time.

[[Page 1893]]

    Comment: Long term variation, waste characterization procedures 
used by Heritage, and specific information used in the fate & transport 
model are lacking.
    Response: Temporal variability and waste characterization 
procedures used by Heritage were evaluated. The fate and transport data 
used by the delisting risk assessment model is based on national 
averages for a reasonable worst case scenario, not on site specific 
information.
    Comment: It may be more appropriate to set standards using 
statistical procedures from empirical data from TCLP analyses rather 
than generic risk assessment and fate and transport.
    Response: Empirical data is not a reliable predictor of future 
risk. We believe that the DRAS model is a more appropriate tool than 
empirical data for determining acceptable levels based on risk.
    Comment: Is 30,000 cubic yards the untreated or the treated K061? 
Will any amount over 30,000 cubic yards be regulated as K061? What 
information was provided to determine annual volume?
    Response: The proposed delisting is for 30,000 cubic yards of 
treated waste. Any treated K061 in excess of 30,000 yds is not 
delisted. The Agency accepts the facility's assessment and 
certification of data submitted.
    Comment: What is a mixing device?
    Response: A mixing device is a unit in which mixing occurs.
    Comment: Much of the relevant information was confidential business 
information, such as what treatment reagents were used or 
specifications of a mixing device.
    Response: Heritage has claimed information which it submitted on 
equipment, reagents, and process as confidential. Heritage believes 
that such information in the public domain could be injurious.
    Comment: No details were given on and what dust characteristics 
were evaluated.
    Response: Information on dust characteristics of the treated dust 
is provided in section 3.0 of the petition.
    Comment: Are the larger particles that are removed in the dropout 
chamber ever reintroduced into the EAFD for treatment? Would these 
larger particles meet the definition of K061? Are the silos in which 
EAFD is accumulated considered accumulation tanks since the exclusion 
is only for EAFD that has been treated.
    Response: The material in the dropout box is not K061 and is not 
reintroduced into the EAFD for treatment. The silos are part of the 
production unit and not RCRA regulated tanks. Baghouse silos that are 
directly connected via piping to the baghouse are an integral part of 
the EAFD emission control system. Furthermore, the waste is accumulated 
in the silos for less than 90 days, and the silos are part of the 
treatment equipment. The point of generation does not occur until the 
treatment is complete and the waste exits the unit. Therefore, the 
silos are not accumulation tanks and are not subject to RCRA.
    Comment: US EPA should re-evaluate the waste treatment process and 
QA criteria to assure variations in the treated EAFD are minimized.
    Response: If future verification samples indicate excessive 
variations, the waste will be re-evaluated.
    Comment: There are no details on the fingerprinting procedures or 
the quality control measures used to assure proper and consistent 
treatment of the waste.
    Response: The sampling strategy addressed the waste exiting the 
unit. Fingerprinting would not be appropriate since the waste does not 
undergo further treatment after it exits. The quality control measures 
are set forth in the sampling and analysis plan. The required 
verification sampling is intended to assure that the treated waste 
remains within acceptable limits. Verification samples which exceed the 
delisting levels set forth in this rule may invalidate this delisting.
    Comment: The composite sampling procedure in the initial month may 
not be sufficient to describe the variation of metals from different 
mixes of scrap steel. No comparison of the variability of the metals is 
given. EPA should adopt statistical sampling and analytical procedures 
from process and quality control engineering methodology. The limited 
amount of sampling does not provide for waste variability.
    Response: A statistical approach based on extensive data would be 
welcomed in future petitions. Since the K061 dust is generated at a 
single facility, the Agency believes that the samples taken represent a 
reasonable range of both spacial and temporal varibility. Some 
confidential data was submitted demonstrating waste variability at this 
site.
    Comment: The presence of VOCs, SVOCs and PCBs is considered 
unlikely. However, one sample is insufficient to determine the presence 
or absence of these compounds. Verification should require that a 
limited number of samples be analyzed for these constituents.
    Response: Based on an understanding of the process, the Agency 
believes that these constituents are not likely to be present in the 
waste. Generator knowledge also supports the absence of these 
constituents in the waste. In this case, a single sample is considered 
sufficient to verify the absence of these compounds.
    Comment: The commenter recommends that split samples should be 
taken by EPA.
    Response: EPA does not sample wastes in support of delisting 
petitions. The signed certification is accepted as proof that all 
analyses were done properly and the results are reported correctly.
    Comment: Listed waste needs to meet technology based LDRs prior to 
disposal. The delisting level for lead has been set at 2.4 mg/L TCLP 
which is above the LDR standard of .75 mg/L TCLP. Why weren't LDRs 
considered in setting the delisting standard?
    Response: The proposed exclusion for this waste would be effective 
at the point of generation. Since LDRs attach at the point of 
generation this waste would not be considered hazardous and therefore 
is not subject to LDRs.
    Comment: There are no criteria listed for what constitutes a 
significant change to the treatment process or a change in the 
chemicals used.
    Response: A change either to the treatment process or in the 
chemicals used is significant if it results in a change in the 
composition of the waste.
    Comment: In most cases where samples are required to support 
decision-making under RCRA, grab samples are required. Samples taken in 
support of this petition were composite samples. EPA should explain why 
results based on composite sampling were allowed and accepted and why 
these samples do not render the decision to grant the HES petition 
inappropriate due to inconsistent information.
    Response: In the delisting program, composite samples are 
preferred, except in the case of volatile constituents. Multiple 
composite samples provide a better profile of the waste.
    Comment: There should be recognition that a single grab sample 
taken by a regulating authority would be sufficient for a determination 
of legitimacy of the exclusion. The proposed delisting seems to 
indicate that only the monthly sampling done by Heritage could cause 
the exclusion to be suspended.
    Response: The Agency always has the right to take samples to verify 
compliance. Such samples taken by the Agency could provide a basis for 
revoking a delisting.
    Comment: A more rigorous initial sample was used to characterize 
the

[[Page 1894]]

variability for EAFD at USX Steel Corporation in Gary Indiana. Is it 
appropriate to have two different standards for USX and Heritage?
    Response: All delisting decisions, including the initial sampling 
for delisting proposals are site specific. There will be variations.
    Comment: In the ANPRM, 65 FR 37932, June 19, 2000, EPA has 
reservations about the effectiveness of using stabilization to 
immobilize metal wastes. Stabilization has not been scientifically 
proven to be reliable over the long term for disposal of such wastes. 
Allowing this waste to be placed in general purpose landfills which 
have fewer engineered features to prevent leaching and migration of 
heavy metals into groundwater ignores sound science. EPA needs to 
explain why disposing of a hazardous waste in this less protective 
manner should be allowed, absent any evidence confirming that it will 
work.
    Response: At this time, stabilization is considered to be the best 
available treatment for metal bearing wastes. We have no evidence that 
constituents of concern have ever leached from this stabilized waste. 
To assure that the waste continues to meet the levels established here, 
we are requiring periodic testing of the waste and placement of the 
waste in a solid waste landfill which has ground water monitoring.
    Comment: A similar process used in Ohio has caused concern because 
of possible leaching of substances which were supposedly stabilized. 
EPA cited Envirosafe Services in Ohio as having high leachate levels of 
various metals.
    Response: Envirosafe Services in Ohio was not cited by US EPA for 
high levels of metals in the leachate. The facility was cited by Ohio 
EPA for excessive volume of leachate, although this citation may be 
attributed to be an error in measurement. Although the commentor did 
not define what constitutes high levels of metals in the leachate, the 
leachate must be treated as necessary to meet regulated standards 
before disposal. In addition, the concentrations of metals in the 
groundwater are monitored and regulated. While EPA may consider the 
experiences at other locations, petitioned wastes are evaluated on a 
site specific basis. The petitioned waste meets the criteria for 
delisting when the levels set forth in the notice are met.
    Comment: EPA has concluded that over the long term, the actual 
leachate concentrations suggest that significant groundwater 
contamination may result after the eventual failure of liner and other 
contaminant controls.
    Response: The DRAS model calculates risk assuming a worst case 
scenario of no liner at all. Under this scenario, the waste can be 
delisted.
    Comment: An independent engineering expert has warned that the 
massive weight of stabilized K061 on the liner could produce hundreds 
of high pressure points which will burst and result in leakage of the 
liner and seepage of groundwater into and through the cell. The problem 
of groundwater leaching out the heavy metals in a Class C landfill 
cannot be ignored, but EPA did not analyze it.
    Response: Currently a liner is the best available technology for 
landfills, regardless of whether it is a hazardous waste landfill 
(Subtitle C) or a solid waste landfill (Subtitle D). However, the model 
used to assess the risk of a delisted waste assumes that no liner is 
present.
    Comment: It is scientifically established that lead can actively 
affect hydration of the concrete ingredients of the stabilization 
process. Lead tends to locate near the surface of cement-like materials 
and is easily leached into water. This is a concern in a less-secure 
Class C landfill which is not built to withstand the immense weight of 
stabilized K061.
    Response: There is no evidence that lead has leached from this 
waste in the past and therefore we cannot assume that it will do so in 
the future. Since the model assumes no liner, the weight of the 
stabilized K061 and its possible effect on a liner is not relevant. It 
is assumed that the commentor is concerned about disposal in a Subtitle 
D landfill, since a Subtitle C landfill which the commentor referred to 
is more secure, not less secure as stated in the comment.
    Comment: Arsenic and cadmium have been most frequently found in 
hazardous concentrations on both a total and dissolved constituent 
basis.
    Response: Only very low concentrations of these constituents leach 
from the petitioned waste in a TCLP analysis. EPA believes that at 
these low concentrations, these constituents do not pose a risk.
    Comment: EPA has expressed concern over migration of metals from 
stabilized waste to groundwater, yet EPA proposed to grant the Heritage 
petition without reviewing any groundwater monitoring information. In 
fact, Heritage submitted no groundwater monitoring information.
    Response: HES has submitted groundwater monitoring data for their 
Subtitle C landfill where the waste is currently being disposed. The 
data does not indicate the presence of any constituent above health 
based levels.

V. Regulatory Impact

    Under Executive Order 12866, EPA must conduct an ``assessment of 
the potential costs and benefits'' for all ``significant'' regulatory 
actions.
    The proposal to grant an exclusion is not significant, since its 
effect, if promulgated, would be to reduce the overall costs and 
economic impact of EPA's hazardous waste management regulations. This 
reduction would be achieved by excluding waste generated at a specific 
facility from EPA's lists of hazardous wastes, thus enabling a facility 
to manage its waste as nonhazardous.
    Because there is no additional impact from today's final rule, this 
proposal would not be a significant regulation, and no cost/benefit 
assessment is required. The Office of Management and Budget (OMB) has 
also exempted this rule from the requirement for OMB review under 
section (6) of Executive Order 12866.

VI. Congressional Review Act

    The Congressional Review Act (5 U.S.C. 801 et seq.) as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of Congress and to the Comptroller General of the United 
States. EPA is not required to submit a rule report regarding today's 
action under section 801 because this is a rule of particular 
applicability. 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, procedure, 
or practice that do not substantially affect the rights or obligations 
of non agency parties (5 U.S.C. 804(3)). This rule is not a ``major 
rule'' as defined by 5 U.S.C. 804(2). This rule will become effective 
on the date of publication in the Federal Register.

VII. Executive Order 12875

    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. If the mandate is unfunded, EPA must 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

[[Page 1895]]

their concerns, copies of 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 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 Executive Order 12875 do not apply to this 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: December 12, 2001.
Gerald Phillips,
Acting Director, Waste, Pesticides and Toxics Division.

    For the reasons set out in the preamble, 40 CFR part 261 is amended 
as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for part 261 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.


    2. In Table 2 of appendix IX of 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 2.--Wastes Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
             Facility                             Address                           Waste description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
Heritage Environmental Services,    Crawfordsville, Indiana...........  Electric arc furnace dust (EAFD) that
 LLC., at the Nucor Steel facility.                                      has been generated by Nucor Steel at
                                                                         its Crawfordsville, Indiana facility
                                                                         and treated on site by Heritage
                                                                         Environmental Services, LLC (Heritage)
                                                                         at a maximum annual rate of 30,000
                                                                         cubic yards per year and disposed of in
                                                                         a Subtitle D landfill which has
                                                                         groundwater monitoring, after January
                                                                         15, 2002.
                                                                        (1) Delisting Levels:
                                                                        (A) The constituent concentrations
                                                                         measured in either of the extracts
                                                                         specified in Paragraph (2) may not
                                                                         exceed the following levels (mg/L):
                                                                         Antimony--0.206; Arsenic--0.0936;
                                                                         Barium--55.7; Beryllium--0.416;
                                                                         Cadmium--0.15; Chromium (total)--1.55;
                                                                         Lead--5.0; Mercury--0.149; Nickel--
                                                                         28.30; Selenium--0.58; Silver--3.84;
                                                                         Thallium--0.088; Vanadium--21.1; Zinc--
                                                                         280.0.
                                                                        (B) Total mercury may not exceed 1 mg/
                                                                         kg.
                                                                        (2) Verification Testing: On a monthly
                                                                         basis, Heritage or Nucor must analyze
                                                                         two samples of the waste using the TCLP
                                                                         method, the TCLP procedure with an
                                                                         extraction fluid of pH 12 
                                                                         0.05 standard units and SW-846 Method
                                                                         7470 for mercury. The constituent
                                                                         concentrations measured must be less
                                                                         than the delisting levels established
                                                                         in Paragraph (1).
                                                                        (3) Changes in Operating Conditions: If
                                                                         Nucor significantly changes the
                                                                         manufacturing process or chemicals used
                                                                         in the manufacturing process or
                                                                         Heritage significantly changes the
                                                                         treatment process or the chemicals used
                                                                         in the treatment process, Heritage or
                                                                         Nucor must notify the EPA of the
                                                                         changes in writing. Heritage and Nucor
                                                                         must handle wastes generated after the
                                                                         process change as hazardous until
                                                                         Heritage or Nucor has demonstrated that
                                                                         the wastes continue to meet the
                                                                         delisting levels set forth in Paragraph
                                                                         (1) and that no new hazardous
                                                                         constituents listed in Appendix VIII of
                                                                         Part 261 have been introduced and
                                                                         Heritage and Nucor have received
                                                                         written approval from EPA.
                                                                        (4) Data Submittals: Heritage must
                                                                         submit the data obtained through
                                                                         monthly verification testing or as
                                                                         required by other conditions of this
                                                                         rule to U.S. EPA Region 5, Waste
                                                                         Management Branch (DW-8J), 77 W.
                                                                         Jackson Blvd., Chicago, IL 60604 by
                                                                         February 1 of each calendar year for
                                                                         the prior calendar year. Heritage or
                                                                         Nucor must compile, summarize, and
                                                                         maintain on site for a minimum of five
                                                                         years records of operating conditions
                                                                         and analytical data. Heritage or Nucor
                                                                         must make these records available for
                                                                         inspection. All data must be
                                                                         accompanied by a signed copy of the
                                                                         certification statement in 40 CFR
                                                                         260.22(i)(12).
                                                                        (5) Reopener Language--(A) If, anytime
                                                                         after disposal of the delisted waste,
                                                                         Heritage or Nucor possesses or is
                                                                         otherwise made aware of any data
                                                                         (including but not limited to leachate
                                                                         data or groundwater monitoring data)
                                                                         relevant to the delisted waste
                                                                         indicating that any constituent
                                                                         identified in Paragraph (1) is at a
                                                                         level in the leachate higher than the
                                                                         delisting level established in
                                                                         Paragraph (1), or is at a level in the
                                                                         groundwater higher than the maximum
                                                                         allowable point of exposure
                                                                         concentration predicted by the CMTP
                                                                         model, then Heritage or Nucor must
                                                                         report such data, in writing, to the
                                                                         Regional Administrator within 10 days
                                                                         of first possessing or being made aware
                                                                         of that data.
                                                                        (B) Based on the information described
                                                                         in paragraph (5)(A) and any other
                                                                         information received from any source,
                                                                         the Regional Administrator will make a
                                                                         preliminary determination as to whether
                                                                         the reported information requires
                                                                         Agency action to protect human health
                                                                         or the environment. Further action may
                                                                         include suspending, or revoking the
                                                                         exclusion, or other appropriate
                                                                         response necessary to protect human
                                                                         health and the environment.
                                                                        (C) If the Regional Administrator
                                                                         determines that the reported
                                                                         information does require Agency action,
                                                                         the Regional Administrator will notify
                                                                         Heritage and Nucor in writing of the
                                                                         actions the Regional Administrator
                                                                         believes are necessary to protect human
                                                                         health and the environment. The notice
                                                                         shall include a statement of the
                                                                         proposed action and a statement
                                                                         providing Heritage and Nucor with an
                                                                         opportunity to present information as
                                                                         to why the proposed Agency action is
                                                                         not necessary or to suggest an
                                                                         alternative action. Heritage and Nucor
                                                                         shall have 30 days from the date of the
                                                                         Regional Administrator's notice to
                                                                         present the information.

[[Page 1896]]

 
                                                                        (D) If after 30 days Heritage or Nucor
                                                                         presents no further information, the
                                                                         Regional Administrator will issue a
                                                                         final written determination describing
                                                                         the Agency actions that are necessary
                                                                         to protect human health or the
                                                                         environment. Any required action
                                                                         described in the Regional
                                                                         Administrator's determination shall
                                                                         become effective immediately, unless
                                                                         the Regional Administrator provides
                                                                         otherwise.
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 02-953 Filed 1-14-02; 8:45 am]
BILLING CODE 6560-50-P