[Federal Register Volume 67, Number 38 (Tuesday, February 26, 2002)]
[Proposed Rules]
[Pages 8762-8769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4530]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-7150-2]


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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule and request for comment.

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SUMMARY: The Environmental Protection Agency (EPA, also the Agency or 
we in this preamble) is proposing to grant a petition submitted by 
Weirton Steel Corporation (Weirton), to exclude (or delist) on a one-
time basis certain solid wastes generated at its Weirton, West 
Virginia, facility from the lists of hazardous waste.
    The Agency has tentatively decided to grant the petition based on 
an evaluation of specific information provided by the petitioner. This 
tentative decision, if finalized, would conditionally exclude the 
petitioned waste from the requirements of the hazardous waste 
regulations under the Resource Conservation and Recovery Act (RCRA).

DATES: EPA is requesting public comments on this proposed decision. We 
will accept comments on this proposal until April 12, 2002. Comments 
postmarked after the close of the comment period will be stamped 
``late.'' These late comments may not be considered in formulating a 
final decision.
    Any person may request a hearing on this tentative decision to 
grant the petition by filing a request by March 13, 2002. The request 
must contain the information prescribed in 40 CFR 260.20(d).

ADDRESSES: Please send two copies of your comments to David M. 
Friedman, Technical Support Branch (3WC11), U.S. EPA Region III, 1650 
Arch Street, Philadelphia, PA, 19103-2029.
    Your request for a hearing should be addressed to James J. Burke, 
Director, Waste and Chemicals Management Division (3WC00), U.S. EPA 
Region III, 1650 Arch Street, Philadelphia, PA, 19103-2029.
    The RCRA regulatory docket for this proposed rule is located at the 
offices of U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA, 
19103-2029, and is available for you to view from 8:30 a.m. to 5 p.m., 
Monday through Friday, except on Federal holidays. Please call David M. 
Friedman at (215) 814-3395 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, please contact David M. Friedman at the address above or 
at (215) 814-3395.

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

I. Background
    A. What laws and regulations give EPA the authority to delist 
waste?
    B. What does Weirton request in its petition?
II. Waste-Specific Information
    A. How was the waste generated by Weirton?
    B. What information did Weirton submit to support its petition?
III. EPA's Evaluation of the Petition
    A. What method did EPA use to evaluate risk?
    B. What other factors did EPA consider in its evaluation?
    C. What conclusion did EPA reach?
IV. Conditions for Exclusion
    A. What conditions are associated with this exclusion?
    B. What happens if Weirton fails to meet the conditions of this 
exclusion?
V. Effect on State Authorization
VI. Effective Date
VII. Administrative Requirements

I. Background

A. What Laws and Regulations Give EPA the Authority To Delist Waste?

    EPA published amended lists of hazardous wastes from non-specific 
and specific sources on January 16, 1981, as part of its final and 
interim final regulations implementing Section 3001 of RCRA. These 
lists have been amended several times, and are found at 40 CFR 261.31 
and 261.32.
    We list these wastes as hazardous because: (1) They typically and 
frequently exhibit one or more of the characteristics of hazardous 
wastes identified in Subpart C of 40 CFR Part 261 (i.e., ignitability, 
corrosivity, reactivity, and toxicity), or (2) they meet the criteria 
for listing contained in 40 CFR 261.11(a)(2) or (a)(3).
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
that is described in these regulations generally is hazardous, a 
specific waste from an individual facility meeting the listing 
description may not be.
    For this reason, 40 CFR 260.20 and 260.22 provide an exclusion 
procedure which allows a person to demonstrate that a specific listed 
waste from a particular generating facility should not be regulated as 
a hazardous waste, and should, therefore, be delisted.
    According to 40 CFR 260.22(a)(1), in order to have these wastes 
excluded, a petitioner must first show that wastes generated at its 
facility do not meet any of the criteria for which the wastes were 
listed. The criteria which we use to list wastes are found in 40 CFR 
261.11. An explanation of how these criteria apply to a particular 
waste is contained in the background document for that listed waste.
    In addition to the criteria that we considered when we originally 
listed the waste, we are also required by the provisions of 40 CFR 
260.22(a)(2) to consider any other factors (including additional 
constituents), if there is a reasonable basis to believe that these 
factors could cause the waste to be hazardous.
    In a delisting petition, the petitioner must demonstrate that the 
waste does not exhibit any of the hazardous waste characteristics 
defined in Subpart C of 40 CFR Part 261 (i.e., ignitability, 
corrosivity, reactivity, and toxicity), and must present sufficient 
information for EPA to determine whether the waste contains any other 
constituents at hazardous levels.
    A generator remains obligated under RCRA to confirm that its waste 
remains non-hazardous based on the hazardous waste characteristics 
defined in Subpart C of 40 CFR Part 261, even if EPA has delisted its 
waste.
    We also define residues from the treatment, storage, or disposal of 
listed hazardous wastes and mixtures containing listed hazardous wastes 
as hazardous wastes. (See 40 CFR 261.3(a)(2)(iv) and (c)(2)(i), 
referred to as the ``mixture'' and ``derived-from'' rules, 
respectively.) These wastes are also eligible for exclusion but remain 
hazardous wastes until delisted.

B. What Does Weirton Request in Its Petition?

    On March 3, 1999, Weirton petitioned EPA to exclude on a one-time 
basis the wastewater treatment sludge contained in an inactive surface 
impoundment (the East Lagoon) and two tanks (the Figure 8 tanks) from 
the list of hazardous wastes contained in 40 CFR 261.31. The lagoon and 
tanks were removed from service in September,

[[Page 8763]]

1998. The total estimated volume of sludge in the impoundment and tanks 
is 18,000 cubic yards.
    The wastewater treatment sludge is described in Weirton's petition 
as a mixture of small quantities of EPA Hazardous Waste Numbers F007 
(spent cyanide plating bath solutions from electroplating operations) 
and F008 (plating bath residues from the bottom of plating baths from 
electroplating operations where cyanides are used in the process) with 
nonhazardous solids that settled during treatment of process 
wastewater, cooling water, quench water, and stormwater entering 
Weirton's C&E outfall area.
    Hazardous wastes F007 and F008 were originally listed because they 
were found to contain cyanide salts, although Land Disposal Restriction 
treatment standards for these wastes found at 40 CFR 268.40 have been 
establised for cadmium, chromium (total), cyanide (total), cyanide 
(amenable), lead, nickel, and silver.
    The sludge is currently being managed as listed hazardous waste as 
a result of a judicial Consent Decree (Civil Action No. 5:96-CV-171) 
entered into on December 26, 1996, by Weirton, EPA, the West Virginia 
Department of Environmental Protection (WVDEP) and the United States 
Department of Justice. The Consent Decree requires that Weirton 
decommission the East Lagoon (and another impoundment known as the West 
Lagoon) and manage and dispose of the sludge as listed hazardous waste. 
The sludge contained in the West Lagoon is not included in this 
petition. It was removed and disposed of as hazardous waste in the fall 
of 1997 and spring of 1998.
    Weirton is requesting this exclusion so that the sludge in the East 
Lagoon and the Figure 8 tanks can be removed and disposed of in a 
permitted Subtitle D landfill.

II. Waste-Specific Information

A. How Was the Waste Generated by Weirton?

    Weirton owns and operates an integrated steel mill, including the 
C&E wastewater treatment plant, occupying approximately 1300 acres on 
the banks of the Ohio River in Weirton, WV. Weirton produces iron and 
steel, and manufactures flat rolled carbon steel that is further 
processed into tin mill products and hot rolled, cold rolled and 
galvanized sheet steel products. Manufacturing processes that 
contributed wastewater to the generation of the wastewater treatment 
sludge that is the subject of this petition (known as the C&E sludge) 
included steel-making in basic oxygen furnaces, steel slab production 
in a four strand continuous caster, sheet steel production via hot and 
cold rolling using roughing and finishing strands, tandem mills, 
pickling, temper mills, annealing and hot dip galvanizing of sheet 
steel.
    Several waste treatment processes contributed wastewater discharges 
to the C&E outfall area. Internal wastewater treatment plants at the 
hot mill, continuous caster, the basic oxygen plant scrubber and the 
oil recovery plant remove solids and oil from the process wastewater 
via settling, filtration and skimming. The primary contributor of 
wastewater flow is the hot mill wastewater treatment plant which 
contributes mill scale containing iron and trace levels of metals and 
oil and grease to the C&E outfall area. The basic oxygen plant scrubber 
treats quench water from the basic oxygen furnace exhaust, and its 
wastewater treatment plant contributes trace levels of iron and other 
metals to the C&E outfall area. Weak acid rinsewater and oils are 
treated in the on-site oil recovery plant, and this wastewater 
treatment plant contributes metals and oil and grease to the C&E 
outfall area. Spent pickle liquor is processed at an on-site acid 
regeneration plant for reuse in the pickling lines.
    The process that caused the C&E sludge to be classified as EPA 
hazardous wastes F007 and F008 was the recovery of tin from tin plating 
line sludges in the detinning plant and the subsequent discharge of 
wastewater from the detinning plant to the C&E wastewater treatment 
plant. Tin sludge from the tin mill was generated in Weirton's halogen 
electroplating lines which used cyanide in the process. The sludge was 
periodically removed from the electroplating cells and transported to 
the detinning plant for tin recovery. The detinning plant was also used 
for the recovery of tin and steel from tin-plated scrap steel. Both 
elemental tin and steel were recycled in this process.
    The volume of tin-recovery process water historically discharged 
from the detinning plant to the C&E outfall area (approximately 22,500 
gallons per day) was negligible compared to the quantity of non-
hazardous process water discharged to this outfall (approximately 
60,000,000 gallons per day). Recovery of tin from tin scrap ceased in 
1996, and tin sludge processing related discharges from the detinning 
plant to the C&E outfall ceased on February 7, 1997. The detinning 
plant was subsequently closed, and tin scrap and tin sludge are 
currently transported offsite for tin recovery and/or disposal.
    Other non-process wastewater treated at the C&E outfall area 
wastewater treatment plant consists of onsite and Weirton City 
stormwater runoff collected from multiple upstream facilities and 
locations.
    At the C&E outfall area, the lagoon was used for oil skimming and 
for settling of solids not removed in the upstream wastewater treatment 
plants described above.
    The sludge itself consists primarily of inorganic solids generated 
as a result of steelmaking. The Ohio River is used as the source of 
process water for the steelmaking process, and much of the solids 
content in the wastewater is associated with the suspended and 
dissolved solids in the raw river water. Another substantial portion of 
the sludge can be attributed to the mill scale present in the 
wastewater. Oil and grease are also present in the sludge as a result 
of the use of various lubricants in the rolling and other steelmaking 
equipment.
    The East Lagoon and the Figure 8 tanks are no longer used for 
wastewater treatment purposes. They were placed in service in 1974. 
From 1974 through 1990, the East Lagoon and an adjacent surface 
impoundment (the West Lagoon) were used for primary solids settling and 
oil skimming. In 1990, a 3.5 million gallon wastewater treatment plant 
was constructed upstream of the lagoons. After 1990, the lagoons were 
used for final polishing of wastewater prior to discharge through a 
permitted outfall.
    Historically, the C&E sludge from the East Lagoon was dredged on a 
routine basis and placed in the Figure 8 tanks using either a clamshell 
bucket or a hydraulic dredge. Placement of the sludge in the Figure 8 
tanks served to gravity thicken and dewater it prior to offsite 
disposal.
    The East Lagoon and the Figure 8 tanks were removed from service on 
September 2, 1998.

B. What Information Did Weirton Submit To Support Its Petition?

    In order to support its petition, Weirton submitted detailed 
descriptions of its manufacturing and wastewater treatment process, 
analytical results from representative samples of its wastewater 
treatment sludge collected by the United States Army Corps of Engineers 
(ACOE) for EPA during an investigation done in September 1996, 
analytical results from samples of the wastewater treatment sludge 
obtained by Weirton on September 8, 1996, and split samples analyzed by 
Weirton from the ACOE sampling investigation. We

[[Page 8764]]

requested and Weirton provided Material Safety Data Sheets (MSDS) for 
commercial products used in its process.
    The ACOE analytical program obtained systematic and grab samples 
from the East Lagoon. Sludge samples were obtained from twenty-nine 
discrete locations in the East Lagoon. Nineteen samples were obtained 
from grid nodes. Five random samples were obtained from the shallow 
sludge layer. An additional five samples from the deep sludge layer 
were obtained from the center of the lagoon and the center of each 
lagoon quadrant.
    All nineteen grid samples were analyzed for the twenty-three metals 
on the Target Analyte List (TAL) plus tin, total and amenable cyanide, 
total petroleum hydrocarbons (TPH) and pH. The Toxicity Characteristic 
Leaching Procedure (TCLP) was performed on the five grid samples that 
had the highest total metal content to determine leachable metals 
concentrations of the eight Toxicity Characteristic (TC) metals plus 
nickel and tin.
    The five random samples were analyzed for the twenty-three metals 
on the TAL plus tin, total and amenable cyanide, TPH and pH. The TCLP 
was performed on three of the random samples to determine leachable 
metals concentrations of the TC metals plus nickel and tin.
    The five deep samples were analyzed for the twenty-three metals on 
the TAL plus tin, total and amenable cyanide, TPH, volatile organic 
compounds, semivolatile organic compounds, pH and ignitability. The 
TCLP was performed on all five deep samples to determine leachable 
concentrations of the TC metals plus nickel and tin, and TC organics 
except for pesticides and herbicides.
    After an initial review of the Weirton petition, we rejected the 
analytical results obtained by Weirton from the samples it collected on 
September 8, 1996, and from the samples it analyzed which were obtained 
as split samples during the ACOE investigation. We did this because the 
data had not been validated and, therefore, was of unknown quality.
    We requested that Weirton supplement the data obtained during the 
ACOE investigation because high TPH values indicated the oil and grease 
content of the waste was greater that 1%. When oil and grease content 
is greater than 1%, we do not know if the leachate data for metal 
constituents obtained by performing SW-846 Method 1311, the Toxicity 
Characteristic Leaching Procedure (TCLP), will be representative of the 
mobility of these constituents in the environment. In this case, we 
requested that Weirton perform leachate analysis for metals using 
Method 1330A, the Extraction Procedure for Oily Wastes (OWEP).
    Because of the number and variety of wastewater generating 
operations at Weirton, we felt there was the possibility that hazardous 
constituents other than those addressed in the ACOE data might be 
present in the waste. Therefore, we requested that Weirton provide 
analysis for the entire list of hazardous constituents found in 
Appendix IX to 40 CFR Part 264.
    In addition, the quantitation levels for semivolatile organic 
compounds in the ACOE data were unacceptably high for risk-based 
decision making. Therefore, we requested that when doing the Appendix 
IX analysis, Weirton provide us with semivolatile organic compound data 
that had lower (more sensitive) quantitation levels.
    On June 12 and 13, 2001, Weirton collected eight additional samples 
to supplement the ACOE data. Three shallow samples and three deep 
samples were collected in the East Lagoon. An additional sample was 
collected from each of the Figure 8 tanks.
    These samples were analyzed for total Appendix IX volatiles, semi-
volatiles, metals, cyanide and sulfide. Leachable concentrations of all 
constituents except cyanide and sulfide were determined by performing 
the TCLP for Appendix IX volatile and semivolatile organics, and the 
OWEP for metals. Analysis for Appendix IX polychlorinated 
dibenzodioxins (PCDDs) and polychlorinated dibenzofurans (PCDFs), 
polychlorinated biphenyls (PCBs), pesticides and herbicides was 
performed on four of these samples. These additional analyses were 
performed on two of the shallow samples and one deep sample from the 
East Lagoon, and one of the samples from the Figure 8 tanks.
    Leachate analysis was not performed on any of the samples for 
cyanide. Therefore, in our evaluation of cyanide we have calculated the 
theoretical maximum leachate concentration by applying the most 
conservative assumption.
    Analyzing a waste for TCLP constituent concentrations involves 
application of the TCLP (a leaching procedure) followed by analysis of 
the TCLP leachate for the constituents of concern. For a waste that is 
a physical solid (i.e., a waste that does not contain a liquid phase), 
the maximum theoretical leachate concentration can be calculated by 
dividing the total concentration of the constituent by twenty. This 
twenty-fold dilution is part of the TCLP protocol and represents the 
liquid to solid ratio employed in the test procedure.
    If the TCLP were performed on the actual waste, the concentration 
of this constituent in the TCLP leachate could not exceed the 
calculated value derived from the procedure described above. The actual 
TCLP concentration, if determined, may be substantially less than the 
calculated value because the calculated value assumes that 100 percent 
of the constituent leaches from the waste.
    During the supplemental sampling event on June 12 and 13, 2001, the 
WVDEP collected split samples and analyzed them using the TCLP for all 
TC constituents.
    We also requested that Weirton supplement the data obtained during 
the ACOE investigation because of discrepancies in the results of the 
testing done for the characteristic of ignitability.
    As mentioned above, the five deep samples from the ACOE sampling 
event were analyzed for ignitability. The results reported for these 
determinations showed that two of the five samples had a flash point 
greater than 150 deg. F. The reported results for the other three 
samples showed a flash point of 62 deg. F. As defined in 40 CFR 261.21, 
a liquid that has a flash point of less that 140 deg. F, determined 
using one of the methods prescribed in that regulation, is an ignitable 
hazardous waste. The method used for these determinations was EPA 
Method 1010 (Pensky-Martens Closed-Cup Method for Determining 
Ignitability).
    Weirton argues in its petition that the results of samples showing 
a flash point of 62 deg. F were reported in error, and presents results 
of its own determinations to support this conclusion.
    Furthermore, we note that a flash point determination is only 
applicable to liquids as a definitive test for determining the 
characteristic of ignitability. The C&E sludge is not a liquid. Weirton 
reports that the sludge is approximately 45% solids by weight. There is 
no promulgated definitive test for determining the ignitability of 
solids (i.e., physically a solid with no free liquid). There is, 
however, a test method in EPA's compendium of test methods, ``Test 
Methods for Evaluating Solid Wastes,'' (SW-846) for Ignitability of 
Solids (Method 1030). Although not required by regulation, this method 
(a burning rate test procedure) may be used to evaluate that portion of 
the ignitability definition in 40 CFR

[[Page 8765]]

261.22(a)(2) that reads, `` * * * and, when ignited, burns so 
vigorously and persistently that it creates a hazard,'' for certain 
solids.
    Also, we note that the Agency has issued guidance saying that if a 
solid flashes using some modification of the flash point test, this may 
indicate that there is a potential problem with the sample, such as 
contamination with ignitable volatiles, and further investigation may 
be in order. The flash point test may be used with other evidence to 
build a case for a waste being classified as an ignitable hazard.
    On December 18, 2001, Weirton collected five additional samples to 
further demonstrate that the sludge is not ignitable. Weirton 
determined the flash point of these samples using Method 1010, and also 
analyzed the samples using Method 1030.
    The results of this additional analysis demonstrated that the 
samples were not ignitable because of their flash point (all five 
samples had a flash point greater than 200 deg. F), nor were they 
ignitable through application of the burning rate test.
    We agree with Weirton's determination that the C&E sludge is not 
ignitable. The sludge consists primarily of mill scale, sediments from 
treating process water taken from the Ohio River, oil and grease from 
the use of lubricants in the rolling and processing of steel, and storm 
water. It would not be expected to have a significant volatile organic 
content.
    We have reviewed the sampling and analysis procedures used by 
Weirton for the collection and analysis of these samples, and have 
determined that they are adequate for the generation of data that are 
acceptable for risk-evaluation purposes.
    The maximum total and maximum leachate concentrations for all 
detected inorganic constituents in Weirton's waste samples are 
presented in Table 1.
    The detection limits presented in Table 1 represent the lowest 
concentrations quantifiable by Weirton or the ACOE using appropriate 
methods to analyze the waste.

   Table 1.--Maximum Total Constituent and Leachate Concentrations \1\
                       Wastewater Treatment Sludge
------------------------------------------------------------------------
                                Total constituent
    Inorganic constituents      concentration (mg/ OWEP or TCLP leachate
                                       kg)          concentration (mg/l)
------------------------------------------------------------------------
Antimony......................               2.2                1.0
Arsenic.......................              22.4                0.38
Barium........................             172                  2.24
Beryllium.....................               0.75               0.05
Cadmium.......................               6.3                0.0156
Chromium......................             276                  0.382
Cobalt........................              38.4                0.3
Copper........................             243                  0.15
Lead..........................             217                  0.23
Mercury.......................               0.3                0.001
Nickel........................             485                  2.46
Selenium......................               5.4                0.3
Silver........................               6.2                0.01
Thallium......................               5.5                0.2
Tin...........................            7160                  0.124
Vanadium......................              34.9                0.5
Zinc..........................            6010                 12.2
Cyanide (total)...............               3.1                0.155 \2\ 
------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent
  found in any one sample. These levels do not necessarily represent the
  specific levels found in one sample.
\2\ This value is the calculated theoretical maximum leachate
  concentration based on the maximum total constituent concentration.
 Denotes that the constituent was not detected at the concentration
  specified in the table.

    The maximum total and maximum leachate concentrations for all 
detected organic constituents in Weirton's waste samples are presented 
in Table 2.

   Table 2.--Maximum Total Constituent \1\ and Leachate Concentrations
                       Wastewater Treatment Sludge
------------------------------------------------------------------------
                                            Total
                                         constituent     TCLP leachate
         Organic constituents           concentation   concentration (mg/
                                           (mg/kg)             l)
------------------------------------------------------------------------
Acetone..............................      0.62            0.056
Acetophenone.........................      2               0.05
Anthracene...........................      1.4             0.05
Benz(a)anthracene....................      1.9             0.05
Benzene..............................      0.012           0.021
Benzo(a)pyrene.......................      1.8             0.05
Benzo(b)fluoranthene.................      1.2             0.05
Bis(2-ethylhexyl)phthlate............      1.8             0.18
Butylbenzylphthalate.................      1.7             0.05
Carbon Disulfide.....................      0.052           0.05
Chrysene.............................      4.3             0.05
m-Cresol.............................     10               0.25
p-Cresol.............................     10               0.25
DDE..................................      0.05            0.000007

[[Page 8766]]

 
DDT..................................      0.079           0.00001
Endosulfan...........................      0.13            0.000017
Endrin...............................      0.242           0.00006
Ethylbenzene.........................      0.022           0.062
Fluoranthene.........................      2.9             0.05
Heptachlor...........................      0.023           0.00006
Heptachlor epoxide...................      0.014           0.00006
Methyl chloride (chloromethane)......      0.092           0.1
Methyl ethyl ketone (2-butanone).....      0.12            0.002
Methyl isobutyl ketone...............      0.38            0.05
2-Methylnapthalene...................      2               0.05
Phenanthrene.........................      3.8             0.05
Phenol...............................      1               0.038
Pyrene...............................      4.8             0.05
2,3,7,8-TCDD 2.......................      0.00000766      0.00000000011
Toluene..............................      2.4             0.46
Trichloroethylene....................      0.012           0.035
Xylene...............................      0.22            0.29
------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent
  found in any one sample. These levels do not necessarily represent the
  specific levels found in one sample.
\2\ For risk assessment of PCDDs and PCDFs compounds, toxicity values
  are expressed as 2,3,7,8-TCDD equivalents (TEQs).
  Denotes that the constituent was not detected at the concentration
  specified in the table.

    EPA requires that petitioners submit signed certifications 
affirming the truthfulness, accuracy and completeness of the 
information in their delisting petitions (See 40 CFR 260.22(i)(12)). 
Weirton submitted signed certifications stating that all submitted 
information is true, accurate and complete.

III. EPA's Evaluation of the Petition

A. What Method Did EPA Use To Evaluate Risk?

    For this delisting determination, we used information gathered to 
identify plausible exposure routes (i.e., groundwater, surface water, 
and air) for hazardous constituents present in the petitioned waste. 
Because the Consent Decree requires that the sludge be removed from the 
units in which it currently resides and because of its physical form, 
we determined that disposal in a Subtitle D landfill was the most 
reasonable, worst-case disposal scenario for Weirton's petitioned 
waste. We then used a fate and transport model to predict the release 
of hazardous constituents from the petitioned waste once it is disposed 
of, in order to evaluate the potential impact on human health and the 
environment. To perform this evaluation, we used a Windows-based 
software tool, the Delisting Risk Assessment Software Program (DRAS), 
to estimate the potential releases of waste constituents and to predict 
the risk associated with those releases. DRAS accomplishes this using 
several EPA models including the EPA Composite Model for Leachate 
Migration with Transformation Products (EPACMTP) fate and transport 
model for estimating groundwater releases. For a detailed description 
of the DRAS program and the EPACMPT model, See 65 FR 58015, September 
27, 2000. Subsequent revisions to the DRAS program are described in 65 
FR 75637 (December 4, 2000). The DRAS program is available on the World 
Wide Web at http://www.epa.gov/earth1r6/6pd/rcra__abc/pd-o/dras.htm. 
The technical support document for the DRAS program is also available 
on the World Wide Web at http://www.epa.gov/earth1r6/6pd/rcra__c/pd-o/
dtsd.htm as well as in the public docket for this proposed rule.
    The Agency believes that the EPACMTP fate and transport model 
represents a reasonable worst-case scenario for possible groundwater 
contamination resulting from disposal of the petitioned waste in a 
landfill, and that a reasonable worst-case scenario is appropriate when 
evaluating whether a waste should be relieved of the protective 
management constraints of the RCRA Subtitle C program. The use of a 
reasonable worst-case scenario results in conservative values for the 
compliance-point concentrations and insures that the waste, once 
removed from hazardous waste regulation, will not pose a significant 
threat to human health or the environment.
    In assessing potential risks to groundwater, we use the estimated 
waste volume and the maximum measured or calculated leachate 
concentrations as inputs to the DRAS program to estimate the 
constituent concentrations in the groundwater at a hypothetical 
receptor well downgradient from the disposal site. Using an established 
risk level, the DRAS program can back-calculate receptor well 
concentrations (referred to as a compliance-point concentration) using 
standard risk assessment algorithms and Agency health-based numbers.
    For constituents which are not detected in leachate analysis, the 
DRAS requires that the detection limit be entered along with the other 
data. In these circumstances, the DRAS uses one-half the detection 
limit to calculate risk. We believe it is inappropriate to evaluate 
constituents which are not detected in any sample analyzed, if an 
appropriate analytical method was used.
    Similarly, the DRAS also predicts possible risks associated with 
releases of waste constituents through surface pathways (e.g., 
volatilization or wind-blown particulate from the landfill). As in the 
groundwater analyses, the DRAS uses the established acceptable risk 
level, the health-based data, and standard risk assessment and exposure 
algorithms to perform this assessment.
    In most cases, because a delisted waste is no longer subject to 
hazardous waste control, the Agency is generally unable to predict, and 
does not presently control, how a petitioner will

[[Page 8767]]

manage a waste after it is excluded. Therefore, we believe that it is 
inappropriate to consider extensive site-specific factors when applying 
the fate and transport model.
    The back-calculation procedure contrasts with the method used to 
compute the cumulative risk for a one-time delisting petition. To 
determine cumulative risk, the calculations proceed in a forward 
direction. Beginning with the leachate and total waste concentrations 
for each constituent in the waste (source concentrations), the waste 
volume and exposure parameters are used to estimate the upper-bound 
excess lifetime cancer risks (risk) and noncarcinogenic hazards 
(hazard). The risk is said to be cumulative because risks and hazards 
are summed separately for receptors (resident adults and children) 
across all applicable waste constituents and exposure pathways to 
obtain an estimate of the total individual risk and hazard for each 
receptor. Risk is the probability that a receptor will develop cancer. 
Risk is estimated based on a unique set of exposure, model, and 
toxicity assumptions.
    Hazard is defined as the potential for noncarcinogenic health 
effects as a result of exposure to constituents of concern, averaged 
over an exposure period of less than an entire lifetime. A hazard is 
not a probability but rather a measure (expressed as a ratio) of the 
magnitude of a receptor's potential exposure relative to a standard 
exposure level. The standard exposure level is calculated over an 
exposure period such that there is no likelihood of adverse health 
effects to potential receptors, including sensitive populations.
    If a delisting evaluation is performed for a one-time exclusion, 
the DRAS computes the cumulative carcinogenic risk by summing the 
carcinogenic risks for all waste constituents for a given exposure 
pathway and then summing the carcinogenic risks for each pathway 
analyzed in the delisting risk assessment. The DRAS also computes the 
cumulative noncarcinogenic risk by summing the Hazard Quotients for all 
waste constituents for a given exposure pathway to obtain exposure 
pathway-specific Hazard Indexes (HIs), and then summing the HIs 
associated with each exposure pathway analyzed. For a one-time 
exclusion, the results of the cumulative risk assessment may be used in 
lieu of the calculated delisting levels. Since this is a one-time 
delisting, we do not need to establish monitoring concentrations for 
each batch of waste that is subsequently managed under the exclusion. 
Therefore, we set the evaluation levels in the cumulative risk process 
at the established target risk range (1  x  10-4 to 1  x  
10-6 for carcinogenic waste constituents and a HI of 1.0 to 
0.1 for noncarcinogenic waste constituents). Use of the cumulative risk 
analysis allows the risk associated with an individual waste 
constituent to extend to a less conservative risk level as long as the 
cumulative risk for the entire petitioned waste lies below or within 
EPA's target risk range.
    For calculation of delisting levels for multi-year (batch) waste 
generation, EPA Region III generally defines acceptable risk levels as 
wastes with an excess cancer risk of no more than 1  x  10-6 
and a hazard quotient of no more than 0.1 for individual constituents. 
For a one-time delisting, EPA Region III evaluates the cumulative 
cancer risk and cumulative hazard index of the petitioned waste. A 
cumulative cancer risk less than 1  x  10-4 and a cumulative 
hazard index less than or equal to 1 are considered to be protective of 
human health and will be considered acceptable for this type of 
delisting determination.

B. What Other Factors Did EPA Consider in Its Evaluation?

    We also consider the applicability of groundwater monitoring data 
during the evaluation of delisting petitions where the petitioned waste 
is currently managed or was once managed in a land-based unit (e.g., a 
landfill or surface impoundment).
    We use the results of groundwater monitoring data evaluations as a 
check on the reasonable worst case evaluations performed, in order to 
provide an additional level of confidence in our delisting decisions. 
Because groundwater monitoring data are descriptive of the impact of 
the petitioned waste under actual conditions, and not reasonable worst 
case assumptions, we believe that evidence of groundwater contamination 
originating from a land-based waste management unit may be sufficient 
basis for petition denial.
    Pursuant to an administrative order issued by EPA, Weirton is 
currently conducting a RCRA Facility Investigation (RFI) at its site in 
conformance with a plan approved by EPA on July 20, 1999. This plan 
includes groundwater monitoring in the C&E outfall area (known as 
Corrective Action Area I for this purpose) for Target Analyte List 
metals, Target Compound List volatile and semivolatile organics, and 
total cyanide.
    The groundwater monitoring network established for the 
investigation in this area was designed to monitor groundwater quality 
for the entire Corrective Action Area I, not just the East Lagoon. 
Corrective Action Area I includes several other solid waste management 
units in addition to the East Lagoon.
    Nevertheless, one of the groundwater monitoring wells in the 
network is adjacent to the East Lagoon and is likely downgradient of 
the unit. Based on the results collected in the investigation so far, 
this well does not show elevated levels of contaminants, especially 
when compared to the upgradient well in the monitoring network.

C. What Conclusion Did EPA Reach?

    EPA believes that the information provided by Weirton provides a 
reasonable basis to grant Weirton's petition. We, therefore, propose to 
grant Weirton a one-time delisting for its C&E sludge currently 
residing in the East Lagoon and the Figure 8 tanks. The data submitted 
to support the petition and the Agency's evaluation show that the 
constituents in the Weirton C&E sludge are below health-based levels 
used by the Agency for delisting decision-making, and that the sludge 
does not exhibit any of the characteristics of a hazardous waste.
    For this delisting determination, we used information gathered to 
identify plausible exposure routes (i.e., groundwater, surface water, 
air) for hazardous constituents present in the petitioned waste. We 
determined that disposal in a Subtitle D landfill is the most 
reasonable, worst-case disposal scenario for Weirton's petitioned 
waste. We applied the DRAS described above to predict the maximum 
allowable concentrations of hazardous constituents that may be released 
from the petitioned waste after disposal, and we determined the 
potential impact of the disposal of Weirton's petitioned waste on human 
health and the environment.
    The estimated total cumulative risk posed by the waste, as 
calculated using the DRAS, is 7.5  x  10-5. We believe that 
this risk is acceptable both because the value is within the generally 
acceptable range of 1  x  10-4 to 1  x  10-6 and, 
as stated above, for a one-time delisting, EPA Region III considers a 
cumulative cancer risk less than 1  x  10-4 to be protective 
of human health.
    The estimated cumulative hazard index for this waste is calculated 
by DRAS to be 9.8  x  10-2. We likewise believe that this 
risk is acceptable both because the value is within the generally 
acceptable range of 1.0 to 0.1 and, for a one-time delisting, EPA 
Region III considers a cumulative

[[Page 8768]]

hazard index less than or equal to 1 to be protective of human health.
    We believe the data submitted in support of the petition show that 
the waste will not pose a threat when disposed of in a Subtitle D 
landfill. We, therefore, propose to grant Weirton's request for a one-
time delisting for the C&E sludge currently residing in the East Lagoon 
and the Figure 8 tanks.

IV. Conditions for Exclusion

A. What Conditions Are Associated With This Exclusion?

    The proposed exclusion would apply only to the estimated 18,000 
cubic yards of C&E sludge currently contained in the East Lagoon and 
the Figure 8 tanks as described in Weirton's petition. Any volume of 
sludge exceeding this amount could not be managed as nonhazardous waste 
under this exclusion.
    Furthermore, in order to insure that the sludge is removed from the 
units as required by the Consent Decree, and because the risk 
assessment was based on disposal in a landfill, this exclusion would be 
effective only when the sludge is removed from the units in which it 
currently resides. That is, if this proposed exclusion becomes final, 
the C&E sludge would remain a hazardous waste until it is removed from 
the East Lagoon and the Figure 8 tanks for transportation and 
subsequent disposal in a Subtitle D landfill which is permitted, 
licensed, or registered by a state to manage municipal or industrial 
solid waste.
    If Weirton discovers that a condition or assumption related to the 
characterization of this waste that was used in the evaluation of this 
petition is not as reported in the petition, Weirton will be required 
to report any information relevant to that condition or assumption in 
writing to the Regional Administrator and the West Virginia Department 
of Environmental Protection within 10 calendar days of discovering that 
condition.
    The purpose of this condition is to require Weirton to disclose new 
or different information that may be pertinent to the delisting. This 
provision will allow us to reevaluate the exclusion based on this new 
information in order to determine if our original decision was correct. 
If we discover such information from any source, we will act on it as 
appropriate. Further action may include repealing the exclusion, 
modifying the exclusion, or other appropriate action deemed necessary 
to protect human health or the environment. EPA has the authority under 
RCRA and the Administrative Procedures Act, 5 U.S.C. 551 et seq. 
(1978), (APA), to reopen the delisting under the conditions described 
above.
    In order to adequately track wastes that have been delisted, we 
will require that Weirton provide a one-time notification to any State 
regulatory agency to which or through which the delisted waste will be 
transported for disposal. Weirton will be required to provide this 
notification at least 60 calendar days prior to commencing these 
activities. Failure to provide such notification will be a violation of 
the delisting, and may be grounds for revocation of the exclusion.

B. What Happens if Weirton Fails To Meet the Conditions of This 
Exclusion?

    If Weirton violates the terms and conditions established in the 
exclusion, the Agency may start procedures to withdraw the exclusion, 
and may initiate enforcement actions.

V. Effect on State Authorizations

    This proposed exclusion, if promulgated, would be issued under the 
Federal RCRA delisting program. States, however, may impose more 
stringent regulatory requirements than EPA pursuant to Section 3009 of 
RCRA. These more stringent requirements may include a provision which 
prohibits a Federally-issued exclusion from taking effect in the State. 
Because a petitioner's waste may be regulated under a dual system 
(i.e., both Federal (RCRA) and State (RCRA) or State (non-RCRA) 
programs), petitioners are urged to contact State regulatory 
authorities to determine the current status of their wastes under the 
State laws.
    Furthermore, some States are authorized to administer a delisting 
program in lieu of the Federal program (i.e., to make their own 
delisting decisions). Therefore, this proposed exclusion, if 
promulgated, may not apply in those authorized States, unless it is 
adopted by the State. If the petitioned waste is managed in any State 
with delisting authorization, Weirton must obtain delisting 
authorization from that State before the waste may be managed as 
nonhazardous in that State.

VI. Effective Date

    EPA is today making a tentative decision to grant Weirton's 
petition. This proposed rule, if made final, will become effective 
immediately upon such final publication. The Hazardous and Solid Waste 
Amendments of 1984 amended Section 3010 of RCRA to allow rules to 
become effective in less than six months when the regulated community 
does not need the six-month period to come into compliance. That is the 
case here, because this rule, if finalized, would reduce the existing 
requirements for a facility generating hazardous wastes. In light of 
the unnecessary hardship and expense that would be imposed on this 
petitioner by an effective date six months after publication and the 
fact that a six-month deadline is not necessary to achieve the purpose 
of Section 3010, EPA believes that this exclusion should be effective 
immediately upon final publication. These reasons also provide a basis 
for making this rule effective immediately, upon final publication, 
under the Administrative Procedures Act, 5 U.S.C. 553(d).

VII. Administrative Requirements

    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 particular 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, 203, and 205 of the Unfunded Mandates 
Reform Act of 1995 (UMRA) (Pub. L. 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 
Indian tribal governments, as specified in Executive Order 13175 (65 FR 
67249, November 6, 2000). 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(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272) 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. 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.).

[[Page 8769]]

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: February 19, 2002.
Donald S. Welsh,
Regional Administrator, Region III.
    For the reasons set forth in the preamble, 40 CFR part 261 is 
proposed to be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

    2. Table 1 of Appendix IX of part 261 is amended to add the 
following waste stream in alphabetical order by facility to read as 
follows:

Appendix IX to Part 261--Wastes Excluded Under Secs. 260.20 and 260.22.

                               Table 1.--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
             Facility                           Address                            Waste description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
Weirton Steel Corporation          Weirton, West Virginia             Wastewater treatment sludge (known as C&E
                                                                       sludge) containing EPA Hazardous Waste
                                                                       Numbers F007 and F008, subsequent to its
                                                                       excavation from the East Lagoon and the
                                                                       Figure 8 tanks for the purpose of
                                                                       transportation and disposal in a Subtitle
                                                                       D landfill after (insert publication date
                                                                       of the final rule). This is a one-time
                                                                       exclusion for 18,000 cubic yards of C&E
                                                                       sludge.
                                                                      (1) Reopener language
                                                                      (a) If Weirton discovers that any
                                                                       condition or assumption related to the
                                                                       characterization of the excluded waste
                                                                       which was used in the evaluation of the
                                                                       petition or that was predicted through
                                                                       modeling is not as reported in the
                                                                       petition, then Weirton must report any
                                                                       information relevant to that condition or
                                                                       assumption, in writing, to the Regional
                                                                       Administrator and the West Virginia
                                                                       Department of Environmental Protection
                                                                       within 10 calendar days of discovering
                                                                       that information.
                                                                      (b) Upon receiving information described
                                                                       in paragraph (a) of this section,
                                                                       regardless of its source, the Regional
                                                                       Administrator and the West Virginia
                                                                       Department of Environmental Protection
                                                                       will determine whether the reported
                                                                       condition requires further action.
                                                                       Further action may include repealing the
                                                                       exclusion, modifying the exclusion, or
                                                                       other appropriate response necessary to
                                                                       protect human health or the environment.
                                                                      (2) Notification Requirements
                                                                      Weirton must provide a one-time written
                                                                       notification to any State Regulatory
                                                                       Agency to which or through which the
                                                                       delisted waste described above will be
                                                                       transported for disposal at least 60
                                                                       calendar days prior to the commencement
                                                                       of such activities. Failure to provide
                                                                       such notification will be deemed to be a
                                                                       violation of this exclusion and may
                                                                       result in revocation of the decision and
                                                                       other enforcement action.
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 02-4530 Filed 2-25-02; 8:45 am]
BILLING CODE 6560-50-P