[Federal Register Volume 67, Number 100 (Thursday, May 23, 2002)]
[Rules and Regulations]
[Pages 36110-36112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-12964]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-7216-8]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA, also the Agency or 
we in this preamble) today is granting a petition submitted by Weirton 
Steel Corporation (Weirton) to exclude (or delist), on a one-time 
basis, a wastewater treatment sludge from the lists of hazardous 
wastes.
    After careful analysis, we have concluded the petitioned waste does 
not present an unacceptable risk when disposed of in a Subtitle D 
(nonhazardous waste) landfill. This exclusion applies to wastewater 
treatment sludge previously generated at the Weirton facility in 
Weirton, West Virginia, which is contained in an inactive surface 
impoundment (the East Lagoon) and two tanks (the Figure 8 tanks). 
Accordingly, this final rule conditionally excludes a specific volume 
of the petitioned waste from the requirements of the hazardous waste 
regulations under the Resource Conservation and Recovery Act (RCRA) 
when the petitioned waste is removed from the units in which it 
currently resides for disposal in a Subtitle D landfill which is 
permitted, licensed, or registered by a State to manage municipal or 
industrial solid waste.

EFFECTIVE DATE: May 23, 2002.

ADDRESSES: The RCRA regulatory docket for this final 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 information concerning this 
document, please contact David M. Friedman at the address above or at 
(215) 814-3395.

SUPPLEMENTARY INFORMATION:

Official Record

    The official record for this action is kept in a paper format. The 
official record is maintained at the address in the ADDRESSES section 
at the beginning of this document.

Preamble Outline

I. Overview Information
II. Background
    A. What is a delisting petition?
    B. What regulations allow hazardous waste generators to delist 
waste?
    C. What information must the generator supply?
III. Weirton's Delisting Petition
    A. What waste is the subject of Weirton's petition?
    B. What information did Weirton submit to support this petition?
IV. EPA's Evaluation and Final Decision
    A. Why is EPA approving this petition?
    B. What limitations are associated with this exclusion?
    C. When is the final rule effective?
    D. How does this action affect States?
V. Public Comments Received on the Proposed Exclusion
    A. Who submitted comments on the proposed rule?
    B. What were the comments?
VI. Administrative Assessments

I. Overview Information

    On February 26, 2002, we proposed to grant a petition submitted by 
Weirton to exclude (or delist) from the definition of hazardous waste 
on a one-time basis, a wastewater treatment sludge currently contained 
in several onsite units. Today we are finalizing the decision to grant 
a conditional exclusion as described in the February 26, 2002, proposed 
rule.

II. Background

A. What Is a Delisting Petition?

    A delisting petition is a formal request from a generator to 
exclude from the lists of hazardous waste regulated by RCRA, a waste 
that the generator believes should not be considered hazardous.
    In order for a petition to succeed, a petitioner must first show 
that a waste generated at its facility does not meet any of the 
criteria for which the waste was 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, 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 
us to determine whether any other factors (including additional 
constituents) warrant retaining the waste as a hazardous waste.
    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.

B. What Regulations Allow Hazardous Waste Generators To Delist Waste?

    Under 40 CFR 260.20 and 260.22, a generator may petition EPA to 
remove its waste from hazardous waste control by excluding it from the 
lists of hazardous wastes contained in 40 CFR 261.31, 261.32 and 
261.33. Specifically, 40 CFR 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. 40 CFR 
260.22 provides generators the opportunity to petition the 
Administrator to exclude a waste on a ``generator-specific'' basis from 
the hazardous waste lists.

C. What Information Must the Generator Supply?

    A petitioner must provide sufficient information to allow EPA to 
determine that the waste to be excluded does not meet any of the 
criteria under which the waste was listed as a hazardous waste. In 
addition, the Administrator must determine that the waste is not 
hazardous for any other reason.

III. Weirton's Delisting Petition

A. What Waste Is the Subject of Weirton's Petition?

    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. On March 3, 1999, Weirton 
petitioned EPA to exclude, on a one-time basis, 18,000 cubic yards of 
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 wastewater 
treatment sludge (known as the C&E 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.

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

    To support its petition, Weirton submitted (1) detailed 
descriptions of its manufacturing and wastewater

[[Page 36111]]

treatment processes, including Material Safety Data Sheets (MSDS) for 
commercial products used in its processes; (2) detailed analytical 
results from representative samples of its wastewater treatment sludge 
collected both by the United States Army Corps of Engineers and by 
Weirton; and (3) environmental monitoring data from a groundwater 
investigation being conducted as part of an ongoing RCRA Facility 
Investigation at its site.

IV. EPA's Evaluation and Final Decision

A. Why Is EPA Approving This Petition?

    Weirton petitioned EPA to exclude or delist 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) 
because Weirton believes that the petitioned waste does not meet the 
criteria for which it was listed as a hazardous waste. Weirton also 
believes that the waste does not contain other constituents in 
concentrations that would render it hazardous.
    Review of this petition included consideration of the original 
listing criteria, as well as factors (including additional 
constituents) other than those for which the waste was listed, as 
required by the Hazardous and Solid Waste Amendments (HSWA) of 1984. 
See, section 222 of HSWA, 42 U.S.C. 6921(f), and 40 CFR 260.22(a)(1) 
and (2).
    On February 26, 2002, we proposed to conditionally exclude 
Weirton's C&E sludge from the list of hazardous wastes in 40 CFR 
261.31, and requested public comment on the proposed rule. (See, 67 FR 
8762). For reasons stated in both the proposed rule and this document, 
we believe that Weirton's C&E sludge should be excluded from hazardous 
waste control.

B. What Limitations Are Associated With This Exclusion?

    This exclusion applies only to a maximum volume of 18,000 cubic 
yards of C&E sludge, the estimated amount currently contained in the 
East Lagoon and the Figure 8 tanks as described in Weirton's petition. 
Any volume of sludge exceeding this amount cannot be managed as 
nonhazardous waste under this exclusion.
    This exclusion will be effective only when the sludge is removed 
from the units in which it currently resides. That is, the C&E sludge 
remains 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.
    Furthermore, Weirton must provide a one-time notification to any 
State regulatory agency to which or through which the delisted waste 
will be transported for disposal at least 60 calendar days prior to 
commencing these activities.

C. When Is the Final Rule Effective?

    This rule is effective May 23, 2002. HSWA amended section 3010 of 
RCRA to allow rules to become effective in less than six months when 
the regulated community does not need the six-month period to come into 
compliance. That is the case here because this rule reduces, rather 
than increases, the existing requirements for persons generating 
hazardous wastes. For these same reasons, this rule can become 
effective immediately (that is, upon publication in the Federal 
Register) under the Administrative Procedure Act, pursuant to 5 U.S.C. 
553(d).

D. How Does This Action Affect States?

    Because EPA is issuing today's exclusion under the Federal RCRA 
delisting program, only States subject to Federal RCRA delisting 
provisions would be directly affected. This would exclude two 
categories of States: States having a dual system that includes Federal 
RCRA requirements and their own requirements, and States who have 
received EPA's authorization to make their own delisting decisions. We 
describe these two situations below.
    We allow 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, 
or that prohibits a Federally issued exclusion from taking effect in 
the State until the State approves the exclusion through a separate 
State administrative action. Because a dual system (that is, both 
Federal and State programs) may regulate a petitioner's waste, we urge 
petitioners to contact the applicable State regulatory authorities or 
agencies to establish the status of their waste under that State's 
program.
    We have 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 necessarily 
apply within those authorized States. If Weirton transports the 
petitioned waste to, or manages the waste in, any State with delisting 
authorization, Weirton must obtain delisting approval from that State 
before it can manage the waste as nonhazardous in that State.

V. Public Comments Received on the Proposed Exclusion

A. Who Submitted Comments on the Proposed Rule?

    We received public comments on the February 26, 2002, proposed 
exclusion from one interested party which was Weirton, the petitioner.

B. What Were the Comments?

    Weirton expressed its support for the proposed exclusion.

VI. Administrative Assessments

    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.).

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    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 the Congress and to the Comptroller General of the 
United States. Section 804 exempts from section 801 the following types 
of rules (1) rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) 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)). EPA is not 
required to submit a rule report regarding today's action under section 
801 because this is a rule of particular applicability.

List of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and 
recordkeeping requirements.

    Authority: Section 3001(f) RCRA, 42 U.S.C. 6921(f).

    Dated: May 13, 2002.
Donald S. Welsh,
Regional Administrator, Region III.

    For the reasons set forth 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.

Appendix IX of Part 261--[Amended]

    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  
260.20 and 260.22.

                               Table 1.--Wastes Excluded From Non-Specific Sources
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                 Facility                                   Address                       Waste description
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*                  *                  *                  *                  *                  *
                                                        *
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 May 23,
                                                                                      2002. This is a one-time
                                                                                      exclusion for a maximum
                                                                                      volume of 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.
 
*                  *                  *                  *                  *                  *
                                                        *
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[FR Doc. 02-12964 Filed 5-22-02; 8:45 am]
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