[Federal Register Volume 67, Number 10 (Tuesday, January 15, 2002)]
[Rules and Regulations]
[Pages 1896-1899]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-955]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-7124-9]


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 petition submitted by USG Corporation (USG), Chicago, 
Illinois, to exclude (or ``delist''), on a one-time basis, certain 
solid wastes that are interred at an on-site landfill at its American 
Metals Corporation (AMC) facility in Westlake, Ohio from the lists of 
hazardous wastes. This landfill was used exclusively by Donn 
Corporation, the original site owner, for disposal of its wastewater 
treatment plant (WWTP) sludge from 1968 to 1978.
    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. USG's Delisting Petition
    A. What Waste Did USG Petition EPA to Delist?
    B. What Information Must the Petitioner Supply?
    C. What Information Did USG 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. Response to Public Comments Received on the Proposed Exclusion
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 a petitioner 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 EPA to decide whether factors other 
than those for which the waste was listed warrant retaining it as a 
hazardous waste.
    Petitioners remain obligated under RCRA to confirm that their waste 
remains nonhazardous based on the hazardous waste characteristics even 
if EPA has ``delisted'' the wastes.

B. What Regulations Allow a Waste To Be Delisted?

    Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to 
remove their wastes from hazardous waste control by excluding it from 
the lists of hazardous wastes contained in Secs. 261.31 and 261.32. 
Specifically, Sec. 260.20 allows any person to petition the 
Administrator to modify or revoke any provision of parts 260 through 
266, 268, and 273 of Title 40 of the Code of Federal Regulations. 
Section 260.22 provides any person with the opportunity to petition the 
Administrator to exclude a waste at a particular generating facility 
from the hazardous waste lists.

II. USG's Delisting Petition

A. What Waste Did USG Petition EPA To Delist?

    On May 22,1997, USG petitioned EPA to exclude 12,400 cubic yards of 
previously disposed WWTP sludge from the list of hazardous wastes 
contained in 40 CFR 261.31. The WWTP sludge is a mixture of EPA 
Hazardous Waste Number F019 wastewater treatment sludge from the 
conversion coating of aluminum and other nonhazardous wastes.

B. What Information Must the Petitioner Supply?

    A petitioner 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 Administrator must determine that such 
factors do not warrant retaining the waste as hazardous.

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

    To support its petition, USG submitted (1) descriptions and 
schematic diagrams of its manufacturing and wastewater treatment 
processes, including historical information on past

[[Page 1897]]

waste generation and management practices; (2) detailed chemical and 
physical analysis of the landfilled sludge; and (3) environmental 
monitoring data from recent studies of the facility, including 
groundwater data from wells located in and around the on-site landfill.

III. EPA's Evaluation and Final Rule

A. What Decision Is EPA Finalizing and Why?

    Today the EPA is finalizing an exclusion to USG for 12,400 cubic 
yards of WWTP sludge interred at the AMC facility in Westlake, Ohio.
    USG petitioned EPA to exclude, or delist, the WWTP sludge because 
USG believes that the petitioned waste does not meet the RCRA criteria 
for which it was listed it 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 September 27, 2000, EPA proposed to exclude or delist USG's WWTP 
sludge from the list of hazardous wastes in 40 CFR 261.31 and accepted 
public comment on the proposed rule (65 FR 58015). EPA considered all 
comments received, and for reasons stated in both the proposal and this 
document, we believe that USG's waste should be excluded from hazardous 
waste control.

B. What Are the Terms of This Exclusion?

    USG must dispose of the estimated total landfill volume of the WWTP 
sludge, 12,400 cubic yards, in a Subtitle D landfill which is 
permitted, licensed, or registered by a state to manage industrial 
waste. Any amount exceeding this volume is not considered delisted 
under this exclusion. This exclusion is effective only if all 
conditions contained in today's rule are satisfied. This rule does not 
change the regulatory status of the landfill in Westlake, Ohio where 
the waste currently resides.

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 EPA 
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, EPA urges the petitioner 
to contact the state regulatory authority to establish the status of 
its 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 USG transports the petitioned waste to or manages 
the waste in any state with delisting authorization, USG must obtain a 
delisting from that state before it can manage the waste as 
nonhazardous in the state.

IV. Response to Public Comments Received on the Proposed Exclusion

    Comment: The commenter stated that although the Agency reviewed and 
commented on the DRAS model, the public has not had the opportunity to 
do so.
    Response: The proposed rule of September 27, 2000 discussed the 
DRAS model. The comment period provided an opportunity to comment on 
the DRAS model itself as well as its use in this proposed delisting. 
Each proposed delisting must explicitly reference the risk model used. 
Therefore, comments on the DRAS may always be submitted during the 
comment period for any future delisting for which the DRAS was used. 
Also, for comments on future delistings which used the DRAS model, the 
technical support document for the DRAS model may be accessed on-line 
at http://www.epa.gov/earth1r6/6pd/rcra__c/pd-o/dtsd.htm>.
    Comment: It is not clear the Agency intends to use this model and 
that all Regions will be using this methodology to evaluate all 
delisting petitions in the future.
    Response: At this time the Agency anticipates that the DRAS model 
will become the standard tool for evaluating future delisting petitions 
although there is no regulation requiring the use of this model. For 
each petition, each Region will select the risk model it considers to 
be the most appropriate.
    Comment: It is inappropriate for the DRAS model to incorporate 
elements of the not yet finalized Hazardous Waste Identification Rule 
(HWIR) model.
    Response: The risk assessment procedure performed by the DRAS model 
has been reviewed by the Science Advisory Board as well as by EPA's 
Office of Research and Development. Finalizing HWIR will not impact the 
use of this model in delisting decisions.
    Comment: Why were several additional exposure pathways added to the 
delisting evaluation?
    Response: Most of the exposure pathways used in this delisting 
evaluation have been used in previous delisting evaluations. The 
expanded list of exposure pathways is consistent with the exposure 
pathways used by the Agency in recent listing determinations as well as 
in the proposed HWIR.
    Comment: The detection level for 2,3,4,7,8-PeCDF in Table 1 is 
higher than the target risk level for this compound although detection 
levels in the most recent analysis are much lower.
    Response: The highest detection level in any sample is displayed in 
the table, however EPA relied on the actual quantitative results from 
the more recent and more sensitive analysis in evaluating the 
petitioned waste.
    Comment: The petitioner requested that the calculation of the risk 
factor for 2,3,4,7,8-PeCDF be verified because it was comparable to 
2,3,7,8-TCDD which is known to be more toxic.
    Response: Although, 2,3,4,7,8-PeCDF is less toxic, it is more 
bioaccumulative in fish tissue so that its lower toxicity is offset by 
increased exposure.
    Comment: The petitioner requested clarification on how non-detects 
are treated when determining delistable levels for dioxins and furans.
    Response: Non-detects are not evaluated or included if the sample 
was analyzed by a method sufficiently sensitive to detect the 
constituent at the level of concern.
    Comment: The commenter expressed concern that DAF scaling factors 
were

[[Page 1898]]

not linearly related to waste volumes at annual waste volumes less than 
20,000 cubic yards, while the proposed exclusion implied the 
relationship was linear.
    Response: The commenter is correct in that the DAF scaling factors 
are not linearly related to annual waste volume for volumes less than 
20,000 cubic yards. The relationship is approximated by EPA as an 
exponential function. References to linearity and DAF scaling factors 
in the proposed rule were misleading. The DAF scaling factors of one 
constituent are assumed to be directly proportional to DAF scaling 
factors of other constituents, not linearly related to volume.
Additional corrections to the proposed exclusion:
    The delisting factors for dioxin and furan congeners in the 
proposed rule have been corrected to reflect the increased rate of fish 
ingestion attributed to high-risk subpopulations in Region 5, as 
intended in the proposed exclusion. The correct congener-specific 
factors are as follows: 2,3,7,8-TCDD - 7.46  x  10-2; 
1,2,3,7,8-PeCDD - 7.18  x  10-2; 1,2,3,4,7,8-HxCDD - 2.41 
x  10-3; 1,2,3,6,7,8-HxCDD -9.82  x  10-4; 
1,2,3,7,8,9-HxCDD -1.09  x  10-3; 1,2,3,4,6,7,8-HpCDD - 4.20 
 x  10-5; OCDD -1.01  x  10-7; 2,3,7,8-TCDF -5.08 
 x  10-3; 1,2,3,7,8-PeCDF - 8.17  x  10-4; 
2,3,4,7,8-PeCDF -5.97  x  10-2; 1,2,3,4,7,8-HxCDF -5.97  x  
10-4; 1,2,3,6,7,8-HxCDF -1.46  x  10-3; 
2,3,4,6,7,8-HxCDF -4.90  x  10-3; 1,2,3,7,8,9-HxCDF -5.30 
x  10-3; 1,2,3,4,6,7,8-HpCDF - 8.78  x  10-6; 
1,2,3,4,7,8,9-HpCDF -3.11  x  10-4; and OCDF -1.35  x  
10-7.
    The congener specific factors multiplied by the congener 
concentration in the waste provide the individual risk posed by each 
congener. The sum of these risks must not exceed the target risk level 
of 1  x  10-6.

V. Regulatory Impact

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a rule of general applicability and therefore is not a 
``regulatory action'' subject to review by the Office of Management and 
Budget. Because this action is a rule of particular applicability 
relating to a facility, it is not subject to the regulatory flexibility 
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or 
to sections 202, 204, and 205 of the Unfunded Mandates Reform Act of 
1995 (UMRA) (Public Law 104-4). Because the rule will affect only one 
facility, it will not significantly or uniquely affect small 
governments, as specified in section 203 of UMRA, or communities of 
tribal governments, as specified in Executive Order 13084 (63 FR 27655, 
May 10, 1998). For the same reason, this rule will not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also 
is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant.
    This rule does not involve technical standards; thus, the 
requirements of section 12(c) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required 
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), 
in issuing this rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. EPA has complied 
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining 
the takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

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 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: October 26, 2001.
Robert Springer,
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 1 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.

[[Page 1899]]



                               Table 1.--Wastes Excluded From Non-Specific Sources
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             Facility                             Address                           Waste description
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*                  *                  *                  *                  *                  *
                                                        *
American Metals Corporation.......  Westlake, Ohio....................  Wastewater treatment plant (WWTP)
                                                                         sludges from the chemical conversion
                                                                         coating (phosphating) of aluminum (EPA
                                                                         Hazardous Waste No. F019) and other
                                                                         solid wastes previously disposed in an
                                                                         on-site landfill. This is a one-time
                                                                         exclusion for 12,400 cubic yards of
                                                                         landfilled WWTP sludge. This exclusion
                                                                         is effective on January 15, 2002.
                                                                        1. Delisting Levels:
                                                                        (A) The constituent concentrations
                                                                         measured in the TCLP extract may not
                                                                         exceed the following levels (mg/L):
                                                                         antimony--1.52; arsenic--0.691; barium--
                                                                         100; beryllium--3.07; cadmium--1;
                                                                         chromium--5; cobalt--166; copper--
                                                                         67,300; lead--5; mercury--0.2; nickel--
                                                                         209; selenium--1; silver--5; thallium--
                                                                         0.65; tin--1,660; vanadium--156; and
                                                                         zinc--2,070.
                                                                        (B) The total constituent concentrations
                                                                         in any sample may not exceed the
                                                                         following levels (mg/kg): arsenic--
                                                                         9,280; mercury--94; and polychlorinated
                                                                         biphenyls--0.265.
                                                                        (C) Concentrations of dioxin and furan
                                                                         congeners cannot exceed values which
                                                                         would result in a cancer risk greater
                                                                         than or equal to 10-6 as predicted by
                                                                         the model.
                                                                        2. Verification Sampling--USG shall
                                                                         collect six additional vertically
                                                                         composited samples of sludge from
                                                                         locations that compliment historical
                                                                         data and shall analyze the samples by
                                                                         TCLP for metals including antimony,
                                                                         arsenic, barium, beryllium, cadmium,
                                                                         chromium, lead, mercury, nickel,
                                                                         selenium, silver, thallium, tin,
                                                                         vanadium, and zinc. If the samples
                                                                         exceed the levels in Condition (1)(a),
                                                                         USG must notify EPA. The corresponding
                                                                         sludge and all sludge yet to be
                                                                         disposed remains hazardous until USG
                                                                         has demonstrated by additional sampling
                                                                         that all constituents of concern are
                                                                         below the levels set forth in condition
                                                                         1.
                                                                        3. Reopener Language--(a) If, anytime
                                                                         after disposal of the delisted waste,
                                                                         USG possesses or is otherwise made
                                                                         aware of any data (including but not
                                                                         limited to leachate data or groundwater
                                                                         monitoring data) or any other data
                                                                         relevant to the delisted waste
                                                                         indicating that any constituent
                                                                         identified in Condition (1) is at a
                                                                         level higher than the delisting level
                                                                         established in Condition (1), or is at
                                                                         a level in the groundwater exceeding
                                                                         maximum allowable point of exposure
                                                                         concentration referenced by the model,
                                                                         then USG 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 (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
                                                                         USG 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 USG
                                                                         with an opportunity to present
                                                                         information as to why the proposed
                                                                         Agency action is not necessary or to
                                                                         suggest an alternative action. USG
                                                                         shall have 10 days from the date of the
                                                                         Regional Administrator's notice to
                                                                         present the information.
                                                                        (d) If after 10 days USG 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.
                                                                        4. Notifications--USG must provide a one-
                                                                         time written notification to any State
                                                                         Regulatory Agency to which or through
                                                                         which the waste described above will be
                                                                         transported for disposal at least 60
                                                                         days prior to the commencement of such
                                                                         activities. Failure to provide such a
                                                                         notification will result in a violation
                                                                         of the delisting petition and a
                                                                         possible revocation of the decision.
 
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[FR Doc. 02-955 Filed 1-14-02; 8:45 am]
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