[Federal Register Volume 68, Number 117 (Wednesday, June 18, 2003)]
[Proposed Rules]
[Pages 36528-36534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-15361]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-7514-5]


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 the 
Southeastern Public Service Authority (SPSA) and Onyx Environmental 
Services (Onyx), to exclude (or delist) on a one-time basis certain 
solid wastes generated at the SPSA Power Plant in Portsmouth, Virginia, 
from the lists of hazardous waste. This waste is currently located at 
the SPSA Regional Landfill in Suffolk, Virginia.
    The Agency has tentatively decided to grant the petition based on 
an evaluation of specific information provided by the petitioners. 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).
    The Agency is requesting comments on this proposed decision.

DATES: To make sure we consider your comments on this proposed 
exclusion, they must be postmarked by August 4, 2003. Comments received 
after the close of the comment period will be designated as late. EPA 
is not required to consider late comments.
    Any person may request a hearing on this tentative decision to 
grant the petition by filing a request by July 3, 2003. 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), Waste and Chemicals 
Management Division, 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.

FOR FURTHER INFORMATION CONTACT: For technical information concerning 
this document, please contact David M. Friedman at the address above, 
at (215) 814-3395, or via e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

Docket

    EPA has established an official docket for this action. The 
official docket consists of the petition submitted by SPSA/Onyx, the 
results of a risk assessment which evaluates the potential impact of 
the petitioned waste on human health and the environment, any public 
comments received, and other information related to this action. The 
official 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 5:00 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 docket at $0.15 per page.

Outline

    The information in this preamble is organized as follows:

I. Background
    A. What laws and regulations give EPA the authority to delist 
waste?
    B. What does SPSA/Onyx request in their petition?
II. Waste-Specific Information
    A. How was the waste generated?
    B. What information did SPSA/Onyx submit to support their 
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 SPSA or Onyx 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).
    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.)
    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 that would otherwise meet 
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 a waste 
excluded, a petitioner must first show that the 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 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.

[[Page 36529]]

    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 Does SPSA/Onyx Request in Their Petition?

    On April 7, 2003, SPSA/Onyx petitioned EPA to exclude on a one-time 
basis a combustion ash generated at SPSA's waste-to-energy facility in 
Portsmouth, Virginia. The ash which is the subject of this petition is 
currently located at SPSA's Regional Landfill in Suffolk, Virginia. The 
total volume of the subject combustion ash at the SPSA Landfill was 
determined by SPSA/Onyx to be 1410 cubic yards.
    The ash was produced by the routine combustion of a batch of 
municipal and commercial solid waste which was processed in SPSA's 
Refuse Derived Fuel (RDF) plant and burned in SPSA's Power Plant in 
Portsmouth, Virginia. A small amount of this waste consisted of 
materials containing the spent non-halogenated solvent, methyl ethyl 
ketone (EPA Hazardous Waste Number F005).

II. Waste-Specific Information

A. How Was the Waste Generated?

    In January, 2002, Logan Aluminum, Inc. (Logan) sent a routine 
shipment of fourteen drums of hazardous waste generated at the Logan 
plant in Russellville, Kentucky, to Onyx's facility in West Carrollton, 
Ohio. Logan manufactures aluminum sheet used in making beverage cans. 
Its process includes application of an FDA-approved, food-safe coating 
by passing sheet aluminum through rollers. The rollers are cleaned 
periodically by wiping them with cloth strips using virgin methyl ethyl 
ketone (MEK) as the cleaning agent. MEK is the only solvent used by 
Logan in this process.
    The used wipes are collected in drums along with other materials 
including personal protective equipment, excess coating, paper, 
cardboard and packing materials. These wipes are classified by the 
Kentucky Department for Environmental Protection as spent solvent 
wastes.
    Onyx Environmental Services is a company that provides a wide range 
of environmental services to other companies. These services include 
hazardous and non-hazardous waste management.
    Logan has a contractual arrangement with Onyx for the 
transportation and disposal of hazardous and non-hazardous wastes. 
Every two months, Logan ships its wastes to Onyx in 55-gallon drums.
    On January 30, 2002, Onyx picked up a shipment of eighty-two drums 
from Logan. Fourteen of the drums contained MEK rags used in the roller 
cleaning process, and these drums were shipped with a Uniform Hazardous 
Waste Manifest. Sixty drums in this shipment contained only non-
hazardous waste and eight others, which were not further involved in 
this incident, were also designated as hazardous. All the drums in this 
shipment were received at Onyx's West Carrollton facility on February 
9, 2002.
    In the petition, Onyx asserts that on February 16, 2002, the 
fourteen drums containing the used wipes were inadvertently included in 
a shipment of eighty-three drums sent under a non-hazardous waste 
manifest to Eagle Environmental Services, Inc.'s (Eagle) waste 
processing facility in Dorchester, South Carolina. Eagle operates a 
facility that processes non-hazardous industrial waste for recycling 
and disposal, and is permitted for such activities by the South 
Carolina Department of Health and Environmental Control.
    Eagle emptied the fourteen drums containing the used wipes and 
processed their contents, along with approximately twenty-three drums 
of non-hazardous industrial waste, by shredding the combined material 
and mixing it with sawdust to absorb any free liquids that may have 
been present. On February 22, 2002, the processed material, totaling 
47,380 pounds, was shipped in a single container under a non-hazardous 
waste manifest to SPSA's RDF plant in Portsmouth, Virginia. Here, this 
material was mixed with other non-hazardous solid waste and then burned 
in SPSA's Power Plant.
    The ash resulting from combustion of this batch of RDF was 
delivered to the SPSA Regional Landfill in Suffolk, Virginia, on 
February 23, 2002. Following standard procedure, the ash was stockpiled 
there for use as daily cover in the Landfill.
    According to Onyx, on February 26, 2002, it discovered its error 
and notified the Ohio Environmental Protection Agency and Eagle that 
the drums had been shipped to Eagle without the required hazardous 
waste manifest. On February 27, 2002, Eagle notified Chesapeake Waste 
Solutions, the waste broker that had arranged the shipment from Eagle 
to SPSA, and Chesapeake Waste Solutions notified SPSA. SPSA then 
notified the Virginia Department of Environmental Quality.
    Approximately 510 tons (835 cubic yards) of this ash had been used 
as daily cover at the SPSA Regional Landfill before SPSA received 
notification on February 27, 2002, that the ash was subject to 
regulation as a hazardous waste. The remaining ash (about 250 tons or 
575 cubic yards) has been segregated and stored on a liner under a 
water- and wind-tight cover on an adjacent area of the Landfill. The 
area of the Landfill where the material was used as cover is cordoned 
off and operations remain suspended in this area.

B. What Information Did SPSA/Onyx Submit To Support Their Petition?

    In order to support their petition, SPSA/Onyx submitted detailed 
descriptions of the chemicals used and the wastes generated by Logan, 
detailed information related to the material shipments received for 
destruction at SPSA's Power Plant during the period of time between 
receipt of the shipment of material from Eagle and notification of the 
shipping error, and validated analytical results from representative 
samples of the ash obtained by SPSA/Onyx on October 15, 2002 and 
January 28, 2003.
    Because of the number and variety of waste streams that were 
processed at the SPSA waste-to-energy facility, we requested that SPSA/
Onyx analyze the ash for the entire list of constituents found in 
Appendix IX to 40 CFR part 264.
    On October 15, 2002, SPSA/Onyx collected eight samples and one 
duplicate sample from ash being stored in a segregated waste pile at 
the SPSA Regional Landfill. The ash that was used for daily cover in 
the Landfill was not sampled. The ash has been homogenized by several 
processes such as loading out at the power plant, transportation and 
stockpiling, and, therefore, the ash currently stored in the waste pile 
(which is lined with a geosynthetic liner and covered with a high-
density polyethylene cap) was determined to be representative of that 
portion of the ash which was used as daily cover.
    Total analysis was performed on all samples for the entire list of 
Appendix IX constituents, which include volatiles, semi-volatiles, 
pesticides, herbicides, PCBs, polychlorinated dibenzodioxins (PCDDs), 
polychlorinated dibenzofurans (PCDFs) metals, cyanide, and sulfide. 
Toxicity Characteristic Leaching Procedure (TCLP) leachate analysis was 
performed on all Appendix IX metals. TCLP leachate analysis was not 
performed on the organic constituents or cyanide, since allowable 
holding times were exceeded, and any results obtained from such samples 
may not be reliable. Holding time requirements

[[Page 36530]]

were met, however, for total constituent analysis of the organic 
constituents and cyanide. Therefore, in our evaluation of the organic 
constituents (except for the PCDDs and PCDFs) and cyanide, we have 
calculated the theoretical maximum leachate concentrations by applying 
the most conservative assumption.
    Analyzing a waste for TCLP constituent concentrations involves 
application of the TCLP 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.
    PCDD and PCDF analysis of the samples collected during the October 
15, 2002 sampling event were inadvertently analyzed by SPSA/Onyx's 
laboratory using SW-846 Method 8280 rather than the specified method, 
SW-846 Method 8290. Method 8280 did not yield results that were 
sufficiently sensitive for this evaluation. On January 28, 2003, four 
additional composite ash samples were collected and analyzed for total 
and leachable PCDDs and PCDFs concentrations using Method 8290.
    The maximum total constituent and maximum leachate concentrations 
for all detected inorganic constituents in SPSA/Onyx's waste samples 
are presented in Table 1.
    The detection limits presented in Table 1 represent the lowest 
concentrations quantifiable by SPSA/Onyx using appropriate methods to 
analyze the waste.

 Table 1.--Maximum Total Constituent and Leachate Concentrations \1\ in
                                   Ash
------------------------------------------------------------------------
                                            Total
                                         constituent     TCLP leachate
        Inorganic constituents          concentration    concentration
                                            (mg/kg)          (mg/1)
------------------------------------------------------------------------
Antimony..............................        125              0.54
Arsenic...............................         45.9            0.18
Barium................................        375              0.21
Beryllium.............................          1.7           <0.005
Cadmium...............................         34.9            0.11
Chromium..............................        808             <0.5
Cobalt................................         27.3           <0.05
Copper................................       2830              1.8
Lead..................................       1650             <0.5
Mercury...............................          6.8            0.003
Nickel................................        449              0.065
Selenium..............................          4.6           <0.25
Silver................................          9.5           <0.5
Thallium..............................          1.2           <2.0
Tin...................................        149             <0.1
Vanadium..............................         29.6            0.012
Zinc..................................       9810              8.5
Cyanide (total........................          0.28           0.014 \2\ 
------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent
  found in any sample. These levels do not necessarily represent the
  specific levels found in any 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 constituent and maximum leachate concentrations 
for all detected organic constituents in SPSA/Onyx's waste samples are 
presented in Table 2.

 Table 2.--Maximum Total Constituent and Leachate Concentrations \1\ in
                                   Ash
------------------------------------------------------------------------
                                             Total
                                          constituent     TCLP leachate
          Organic constituents           concentration    concentration
                                             (mg/kg)         (mg/1)
------------------------------------------------------------------------
Actone.................................         0.058      0.0029 \3\
Aceonitrile............................        <0.31      <0.0155\3\
Bis(2-ethylhexyl)phthlate..............         2.6        0.13 \3\
Butylbenzylphthalate...................        <2.0       <0.1 \3\
DDD....................................        <0.0022    <0.00011 \3\
Endrin aldehyde........................        <0.0022    <0.00011 \3\
Heptachlor.............................        <0.002     <0.0001 \3\
Methyl ethyl ketone (2-butanone).......        <0.049     <0.00245 \3\
Methylene chloride.....................         0.0082     0.00014 \3\

[[Page 36531]]

 
2,3,7,8-TCDD \2\.......................         0.0175     0.00000000017 
------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent
  found in any sample. These levels do not necessarily represent the
  specific levels found in any one sample.
\2\ For risk assessment of PCDDs and PCDFs compounds, toxicity values
  are expressed as 2,3,7,8-TCDD equivalents (TEQs).
\3\ 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.

    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)). 
SPSA and Onyx each 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 by 
SPSA/Onyx to identify plausible exposure routes (i.e., groundwater, 
surface water, and air) for hazardous constituents present in the 
petitioned waste. Because of its physical form, we determined that 
disposal in a RCRA Subtitle D landfill was the most reasonable, worst-
case (least protective) disposal scenario for SPSA/Onyx'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_c/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 regulation, the Agency is generally unable to predict, 
and does not presently control, how a petitioner will 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

[[Page 36532]]

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.
    In this case, SPSA/Onyx has not generated the subject ash until 
this recent incident (described earlier in this preamble) which 
resulted in a small amount of the ash being used as daily cover in the 
SPSA Regional Landfill. We have determined that it would not be helpful 
to request groundwater monitoring data since the small amount of ash 
used as daily cover would not have a detectable impact on the 
groundwater at this Regional Landfill.

C. What Conclusion Did EPA Reach?

    EPA believes that the information provided by SPSA/Onyx provides a 
reasonable basis to grant SPSA/Onyx's petition. We, therefore, propose 
to grant SPSA/Onyx a one-time delisting for the 1410 cubic yards of 
petitioned ash currently located at the SPSA Regional Landfill. This 
includes both the ash which has been segregated in a waste pile at the 
site as well as the ash that has been used as cover material in the 
Landfill. The data submitted to support the petition and the Agency's 
evaluation show that the constituents in the SPSA/Onyx ash are below 
health-based levels used by the Agency for delisting decision-making, 
and that the ash 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 RCRA Subtitle D landfill is the most 
reasonable, worst-case disposal scenario for SPSA/Onyx'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 SPSA/Onyx's petitioned waste on 
human health and the environment.
    The estimated total cumulative risk posed by the waste, as 
calculated using the DRAS, is 4.1 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 3.2 x 10-1. 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 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 RCRA Subtitle D 
landfill. We, therefore, propose to grant SPSA/Onyx's request for a 
one-time delisting for the 1410 cubic yards of ash currently located at 
the SPSA Regional Landfill.

IV. Conditions for Exclusion

A. What Conditions Are Associated With This Exclusion?

    The proposed exclusion would apply only to the estimated 1410 cubic 
yards of ash currently located at the SPSA Regional Landfill as 
described in SPSA/Onyx's petition. No ash other than the ash described 
in this petition could be managed as nonhazardous waste under this 
exclusion.
    If SPSA and/or Onyx 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, SPSA 
and/or Onyx will be required to report any information relevant to that 
condition or assumption in writing to the Regional Administrator and 
the Virginia Department of Environmental Quality within 10 calendar 
days of discovering that condition.
    The purpose of this condition is to require SPSA and/or Onyx 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.
    SPSA/Onyx state in their petition that the waste, if delisted, will 
remain at the SPSA Regional Landfill. However, in order to adequately 
track wastes that have been delisted, in the event that a decision is 
made to dispose of all or part

[[Page 36533]]

of the ash off-site, we will require that SPSA/Onyx provide a one-time 
notification to any State regulatory agency to which or through which 
the delisted waste will be transported for disposal. SPSA/Onyx 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 SPSA or Onyx Fails To Meet the Conditions of This 
Exclusion?

    If SPSA or Onyx 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, SPSA/Onyx 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 SPSA/Onyx'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 RCRA 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.).

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: June 10, 2003.
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.

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 Sec. Sec.  260.20 and 
260.22.

                               Table 1.--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
                Facility                                 Address                        Waste description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Southeastern Public Service Authority     Suffolk, Virginia....................  Combustion ash generated from
 (SPSA) and Onyx Environmental Services                                           the burning of the spent
 (Onyx).                                                                          solvent methyl ethyl ketone
                                                                                  (Hazardous Waste Number F005)
                                                                                  and disposed of in a Subtitle
                                                                                  D landfill. This is a one-time
                                                                                  exclusion for 1410 cubic yards
                                                                                  of ash and is effective after
                                                                                  (insert publication date of
                                                                                  the final rule).
                                                                                 (1) Reopener language

[[Page 36534]]

 
                                                                                 (a) If SPSA and/or Onyx
                                                                                  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
                                                                                  SPSA and/or Onyx must report
                                                                                  any information relevant to
                                                                                  that condition or assumption,
                                                                                  in writing, to the Regional
                                                                                  Administrator and the Virginia
                                                                                  Department of Environmental
                                                                                  Quality 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 will determine
                                                                                  whether the reported condition
                                                                                  requires further action.
                                                                                  Further action may include
                                                                                  repealing the exclusion,
                                                                                  modifying the exclusion, or
                                                                                  other appropriate action
                                                                                  deemed necessary to protect
                                                                                  human health or the
                                                                                  environment.
                                                                                 (2) Notification Requirements
                                                                                 In the event that the delisted
                                                                                  waste is transported off-site
                                                                                  for disposal, SPSA/Onyx 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 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. 03-15361 Filed 6-17-03; 8:45 am]
BILLING CODE 6560-50-P