[Federal Register Volume 67, Number 143 (Thursday, July 25, 2002)]
[Rules and Regulations]
[Pages 48555-48558]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-18711]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-7250-8]


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 Ormet Primary Aluminum Corporation 
(Ormet) to exclude (or ``delist'') vitrified spent potliner (VSP), 
generated and treated at the Ormet facility in Hannibal, Ohio from the 
lists of hazardous wastes. Spent potliners from primary aluminum 
reduction are listed as hazardous waste number K088 under the Resource 
Conservation and Recovery Act (RCRA).
    Today's action conditionally excludes the petitioned waste from the 
list of hazardous wastes 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 July 25, 2002.

ADDRESSES: The RCRA regulatory docket for this final rule, number R5-
ORMT-01, is located at the U.S. EPA Region 5, 77 W. Jackson Blvd., 
Chicago, IL 60604, and is available for viewing from 8 a.m. to 4 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. Ormet's Delisting Petition
    A. What Waste Did Ormet Petition EPA to Delist?
    B. What Information Must the Generator Supply?
    C. What Information Did Ormet Submit to Support This Petition?
III. EPA's Evaluation and Final Rule
    A. What Decision Is EPA Finalizing and Why?
    B. What Are the Terms of This Exclusion?
    C. When Is the Delisting Effective?
    D. How Does This Action Affect the States?
IV. Public Comment Received on the Proposed Exclusion and EPA's 
Responses
V. Regulatory Impact
VI. Congressional Review Act

I. Background

A. What Is a Delisting Petition?

    A delisting petition is a request from a generator 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 Title 40, Code of Federal Regulations 
(CFR) 261.11 and in the background document for the waste. A petitioner 
must demonstrate that the waste does not exhibit any of the hazardous 
waste characteristics (that is, ignitability, reactivity, corrosivity, 
and toxicity) and must present sufficient information for us to decide 
whether any factors other than those for which the waste was listed 
warrant retaining it as a hazardous waste.
    A generator remains obligated under RCRA to confirm that its 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, a generator may petition the EPA to 
remove its 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. 40 
CFR 260.22 provides a generator the opportunity to petition the 
Administrator to exclude a waste on a ``generator specific'' basis from 
the hazardous waste lists.

II. Ormet's Delisting Petition

A. What Waste Did Ormet Petition EPA To Delist?

    On April, 8, 1994, Ormet submitted an up front petition to exclude 
vitrified spent potliner, K088, generated at its Hannibal Ohio plant 
from the list of hazardous wastes contained in 40 CFR 261.31. In 
December 1999, Ormet submitted a revised petition to exclude an annual 
volume of 8,500 cubic yards of K088 generated under full scale 
operation. K088 is defined as spent potliners from primary aluminum 
reduction.

B. What Information Must the Generator Supply?

    A generator 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 Ormet Submit To Support This Petition?

    To support its petition, Ormet submitted descriptions and schematic 
diagrams of its manufacturing and vitrification processes and detailed 
chemical and physical analysis of the vitrified potliner.

III. EPA's Evaluation and Final Rule

A. What Decision Is EPA Finalizing and Why?

    Today the EPA is finalizing an exclusion for 8500 cubic yards of 
vitrified spent potliner generated and treated annually at the Ormet 
facility in Hannibal, Ohio.

[[Page 48556]]

    Ormet petitioned EPA to exclude, or delist, the vitrified spent 
potliner because Ormet believes that the petitioned waste does not meet 
the 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 August 21, 2001 EPA proposed to exclude or delist Ormet's 
vitrified spent potliner from the list of hazardous wastes in 40 CFR 
261.31 and accepted public comment on the proposed rule (66 FR 43823). 
EPA considered all comments received, and for reasons stated in both 
the proposal and this document, we believe that Ormet's waste should be 
excluded from hazardous waste control.

B. What Are the Terms of This Exclusion?

    Ormet must dispose of the vitrified spent potliner in a Subtitle D 
landfill which is permitted, licensed, or registered by a state to 
manage industrial waste. Any amount exceeding 8,500 cubic yards, 
annually, is not considered delisted under this exclusion. This 
exclusion is effective only if all conditions contained in today's rule 
are satisfied.

C. When Is the Delisting Effective?

    This rule is effective July 25, 2002. The Hazardous and Solid Waste 
Amendments of 1984 amended section 3010 of RCRA to allow rules to 
become effective in less than six months when the regulated community 
does not need the six-month period to come into compliance. This rule 
reduces rather than increases the existing requirements and, therefore, 
is effective immediately upon publication under the Administrative 
Procedure Act, pursuant to 5 U.S.C. 553(d).

D. How Does This Action Affect the States?

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

IV. Public Comments Received on the Proposed Exclusion and EPA's 
Responses

    One comment was received from Ormet which pointed out that the 
proposed rule required sampling on a quarterly basis but required 
subsequent data submittals on a monthly basis. The discrepancy has been 
corrected. Verification sampling and data submittals are both required 
quarterly.

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 impose substantial 
direct compliance costs on 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, or impose substantial direct compliance 
costs state and local governments 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.

List of Subjects in 40 CFR Part 261

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


[[Page 48557]]


    Dated: July 9, 2002.
Phyllis A. Reed,
Acting Director, Waste, Pesticides and Toxins 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, 6924(y), and 
6938.


    2. In Table 2 of Appendix IX to part 261 add the following waste 
stream in alphabetical order by facility to read as follows:
    Appendix IX to Part 261--Wastes Excluded Under Secs. 260.20 and 
260.22.

                                 Table 2.--Wastes Excluded From Specific Sources
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                 Facility                             Address                        Waste description
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Ormet Primary Aluminum Corporation.......  Hannibal, OH.................  Vitrified spent potliner (VSP), K088,
                                                                           that is generated by Ormet Primary
                                                                           Aluminum Corporation in Hannibal
                                                                           (Ormet), Ohio at a maximum annual
                                                                           rate of 8,500 cubic yards per year
                                                                           and disposed of in a Subtitle D
                                                                           landfill, licensed, permitted, or
                                                                           registered by a state. The exclusion
                                                                           becomes effective as of July 25,
                                                                           2002.
                                                                          1. Delisting Levels: (A) The
                                                                           constituent concentrations measured
                                                                           in any of the extracts specified in
                                                                           paragraph (2) may not exceed the
                                                                           following levels (mg/L): Antimony--
                                                                           0.235; Arsenic--0.107; Barium--63.5;
                                                                           Beryllium--0.474; Cadmium--0.171;
                                                                           Chromium (total)--1.76; Lead--5;
                                                                           Mercury--0.17; Nickel--32.2; Selenium-
                                                                           -0.661; Silver--4.38; Thallium--0.1;
                                                                           Tin--257; Vanadium--24.1; Zinc--320;
                                                                           Cyanide--4.11. (B) Land disposal
                                                                           restrictions (LDR) treatment
                                                                           standards for K088 must also be met
                                                                           before the VSP can be land disposed.
                                                                           Ormet must comply with any future LDR
                                                                           treatment standards promulgated under
                                                                           40 CFR 268.40 for K088.
                                                                          2. Verification Testing: (A) On a
                                                                           quarterly basis, Ormet must collect
                                                                           two samples of the waste and analyze
                                                                           them for the constituents listed in
                                                                           paragraph (1) using the methodologies
                                                                           specified in an EPA-approved sampling
                                                                           plan specifying (a) the TCLP method,
                                                                           and (b) the TCLP procedure with an
                                                                           extraction fluid of 0.1 Normal sodium
                                                                           hydroxide solution. The constituent
                                                                           concentrations measured in the
                                                                           extract must be less than the
                                                                           delisting levels established in
                                                                           paragraph (1). Ormet must also comply
                                                                           with LDR treatment standards in
                                                                           accordance with 40 CFR 268.40. (B) If
                                                                           the quarterly testing of the waste
                                                                           does not meet the delisting levels
                                                                           set forth in paragraph (1), Ormet
                                                                           must notify the Agency in writing in
                                                                           accordance with paragraph (5). The
                                                                           exclusion will be suspended and the
                                                                           waste managed as hazardous until
                                                                           Ormet has received written approval
                                                                           for the exclusion from the Agency.
                                                                           Ormet may provide sampling results
                                                                           that support the continuation of the
                                                                           delisting exclusion.
                                                                          3. Changes in Operating Conditions: If
                                                                           Ormet significantly changes the
                                                                           manufacturing process, the treatment
                                                                           process, or the chemicals used, Ormet
                                                                           must notify the EPA of the changes in
                                                                           writing. Ormet must handle wastes
                                                                           generated after the process change as
                                                                           hazardous until Ormet has
                                                                           demonstrated that the wastes continue
                                                                           to meet the delisting levels set
                                                                           forth in paragraph (1) and that no
                                                                           new hazardous constituents listed in
                                                                           Appendix VIII of part 261 have been
                                                                           introduced and Ormet has received
                                                                           written approval from EPA.
                                                                          4. Data Submittals: Ormet must submit
                                                                           the data obtained through quarterly
                                                                           verification testing or as required
                                                                           by other conditions of this rule to
                                                                           U.S. EPA Region 5, Waste Management
                                                                           Branch (DW-8J), 77 W. Jackson Blvd.,
                                                                           Chicago, IL 60604 by February 1 of
                                                                           each calendar year for the prior
                                                                           calendar year. Ormet must compile,
                                                                           summarize, and maintain on site for a
                                                                           minimum of five years records of
                                                                           operating conditions and analytical
                                                                           data. Ormet must make these records
                                                                           available for inspection. All data
                                                                           must be accompanied by a signed copy
                                                                           of the certification statement in 40
                                                                           CFR 260.22(i)(12).
                                                                          5. Reopener Language--(a) If, anytime
                                                                           after disposal of the delisted waste,
                                                                           Ormet possesses or is otherwise made
                                                                           aware of any data (including but not
                                                                           limited to leachate data or
                                                                           groundwater monitoring data) relevant
                                                                           to the delisted waste indicating that
                                                                           any constituent identified in
                                                                           paragraph (1) is at a level in the
                                                                           leachate higher than the delisting
                                                                           level established in paragraph (1),
                                                                           or is at a level in the groundwater
                                                                           higher than the point of exposure
                                                                           groundwater levels referenced by the
                                                                           model, then Ormet must report such
                                                                           data, in writing, to the Regional
                                                                           Administrator within 10 days of first
                                                                           possessing or being made aware of
                                                                           that data.
                                                                          (b) Based on the information described
                                                                           in paragraph (5)(a) or 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 information does
                                                                           require Agency action, the Regional
                                                                           Administrator will notify Ormet 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 Ormet with
                                                                           an opportunity to present information
                                                                           as to why the proposed Agency action
                                                                           is not necessary or to suggest an
                                                                           alternative action. Ormet shall have
                                                                           30 days from the date of the Regional
                                                                           Administrator's notice to present the
                                                                           information. (d) If after 30 days
                                                                           Ormet 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.

[[Page 48558]]

 
 
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[FR Doc. 02-18711 Filed 7-24-02; 8:45 am]
BILLING CODE 6560-50-P