[Federal Register Volume 68, Number 152 (Thursday, August 7, 2003)]
[Rules and Regulations]
[Pages 46951-46957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-20161]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-7541-7]


Hazardous Waste Management System; Exclusion for Identifying and 
Listing Hazardous Waste and a Determination of Equivalent Treatment; 
Final Exclusion

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is granting two 
petitions submitted by the University of California--E.O. Lawrence 
Berkeley National Laboratory (LBNL). First, EPA is granting the 
petition to exclude (or ``delist'') its F002, F003, and F005 mixed 
waste. Second, EPA is granting LBNL's petition which is for a 
determination of equivalent treatment (DET) for the catalytic chemical 
oxidation (CCO) technology that LBNL used to treat its original mixed 
waste.
    After careful analysis EPA has concluded that the petitioned waste 
is no longer hazardous waste and that the CCO treatment is equivalent 
to combustion. This exclusion applies to approximately 200 U.S. gallons 
of residues from treatment of low-level mixed waste from the National 
Tritium Labeling Facility (NTLF), a research facility located within 
LBNL. Accordingly, this final rule excludes the petitioned waste from 
the requirements of hazardous waste regulations under the Resource 
Conservation and Recovery Act (RCRA) provided the petitioner meets the 
delisting conditions which require that the residue be disposed at an 
authorized low-level radioactive waste facility.

EFFECTIVE DATE: August 7, 2003.

ADDRESSES: The public docket for this final rule is located at the U.S. 
Environmental Protection Agency Region 9 RCRA Records Center, 75 
Hawthorne Street, San Francisco, CA 94105, and is available for viewing 
from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal 
holidays. The docket contains the petition, all information submitted 
by the petitioner, and all information used by EPA to evaluate the 
petition. Call the EPA Region 9 RCRA Records Center at (415) 947-4596 
for appointments. The public may copy material from the regulatory 
docket at $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at 800-424-9346. For technical information on specific 
aspects of these petitions, contact Cheryl Nelson at the address above 
or at 415-972-3291, e-mail address: [email protected].

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

I. Overview Information
    A. What Rule Is EPA Finalizing?
    B. Why Is EPA Approving These Petitions?
    C. What Are the Limits of This Exclusion?
    D. How Will LBNL Manage the Waste?
    E. When Is the Final Rule Effective?
    F. How Does This Final Rule Affect States?
II. Background
    A. What Is a Delisting Petition?
    B. What Regulations Allow Facilities To Delist a Waste?
    C. What Information Must the Generator Supply for a Delisting 
Petition?
    D. What Is a Demonstration of Equivalent Treatment?
    E. What Regulations Allow Facilities To Request a Demonstration 
of Equivalent Treatment?
    F. What Information Must the Generator Supply for a 
Demonstration of Equivalent Treatment Petition?
III. EPA's Evaluation of the Waste Information and Data
    A. What Waste Did LBNL Petition EPA To Delist?
    B. How Did LBNL Sample and Analyze the Waste in the Petitions?
IV. Public Comments Received on the Proposed Rule
    A. Who Submitted Comments on the Proposed Rule?
    B. What Did the Supportive Comments Say?
    C. What Were the Non-Supportive Comments and EPA's Responses?
V. Administrative Requirements

I. Overview Information

A. What Rule Is EPA Finalizing?

    After evaluating the petitions, EPA proposed, on July 31, 2002, to 
exclude the Lawrence Berkeley National Laboratory (LBNL) waste from the 
lists of hazardous waste under 40 CFR 261.31 and 261.32, and to grant 
the Demonstration of Equivalent Treatment (DET) for LBNL's Catalytic 
Chemical Oxidation (CCO) technology used to perform the treatment of 
the original mixed waste. Mixed waste is defined as waste that contains 
hazardous waste subject to the requirements of RCRA and source, special 
nuclear, or by-product material subject to the requirements of the 
Atomic Energy Act (AEA). See 42 U.S.C. 6903 (41), added by the Federal 
Facility Compliance Act of 1992. LBNL's petitioned waste contains 
tritium, a radioactive hydrogen isotope (3H) manufactured 
for use as a tracer in biomedical research.
    The EPA is finalizing:
    (1) The decision to grant LBNL's petition to have its F002, F003, 
and F005 mixed waste excluded from the definition of a hazardous waste, 
subject to certain conditions; and (2) the decision to grant LBNL's 
petition for a determination that the CCO technology used to perform 
the treatment of the original mixed waste is equivalent to combustion 
as defined in EPA's Land Disposal Restriction (LDR) Program for 
treatment of high-total organic carbon (TOC) subcategory D001 ignitable 
wastes. Because LBNL's original mixed waste is also a D001 ignitable 
waste, it must be treated via a combustion technology prior to disposal 
to meet the LDR treatment standard.

B. Why Is EPA Approving These Petitions?

    LBNL's delisting petition requests a delisting for approximately 
200 U.S. gallons of residues from treatment of low-level mixed waste. 
The petitioned wastes met the definition of listed F002, F003, and F005 
RCRA hazardous wastes because they were derived from treatment of mixed 
wastes that are listed for these waste codes. LBNL does not believe the 
petitioned waste meets the

[[Page 46952]]

criteria for which EPA listed it as a hazardous waste. LBNL also 
believes no additional constituents or factors could cause the waste to 
be hazardous.
    EPA's review of this petition included consideration of the 
original listing criteria and the additional factors required by the 
Hazardous and Solid Waste Amendments of 1984 (HSWA). See section 
3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(1)-(4) 
(hereinafter all sectional references are to 40 CFR unless otherwise 
indicated). In making the final delisting determination, EPA also 
evaluated the petitioned waste against the listing criteria and factors 
cited in Sec.  261.11(a)(2) and (a)(3). Based on this review, the EPA 
agrees with the petitioner that the waste is nonhazardous with respect 
to the original listing criteria.
    If EPA had found, based on this review, that the waste remained 
hazardous based on the factors for which the waste was originally 
listed, EPA would have proposed to deny the petition. EPA evaluated the 
waste with respect to other factors to assess whether there is a 
reasonable basis to believe that such additional factors could cause 
the waste to be hazardous. These factors included: (1) Whether the 
waste is considered acutely toxic; (2) the toxicity of the 
constituents; (3) the concentrations of the constituents in the waste; 
(4) the tendency of the hazardous constituents to migrate and to 
bioaccumulate; (5) persistence of the constituents in the environment 
once released from the waste; (6) plausible and specific types of 
management of the petitioned waste; (7) the quantity of waste produced; 
and (8) waste variability. EPA believes the petitioned waste does not 
meet these factors or the listing criteria.
    LBNL's DET petition requests a determination under 40 CFR 268.42(b) 
that the CCO technology used to perform the treatment of the original 
mixed waste is equivalent to combustion as defined in EPA's LDR 
Program.
    We are granting the DET because LBNL has adequately demonstrated 
that the CCO technology is equivalent to combustion for the treatment 
of organic wastes. This demonstration is based primarily on the 
following key factors: (1) The CCO system achieves a destruction and 
removal efficiency of more than 99.999% at a temperature near or above 
500[deg]C; (2) the CCO system does not emit Hydrogen Chloride Vapor 
(HCl) or particulate matter; and (3) the CCO system was operated in 
compliance with Federal, State and local hazardous waste and air 
emission regulations. The treatment residues generated from LBNL's use 
of the CCO technology have met the applicable LDR technology standard 
for DOO1 waste. The LDR treatment standards for F002, F003, and F005 
wastes are numeric standards. The CCO technology treated the original 
mixed wastes to below these numeric standards.

C. What Are the Limits of This Exclusion?

    This exclusion applies to the waste described in the petitions only 
if conditions contained herein are satisfied.

D. How Will LBNL Manage the Waste?

    LBNL is currently storing the waste in its permitted mixed waste 
storage facility. When the delisting exclusion is finalized, LBNL will 
dispose the waste in an authorized low-level radioactive waste disposal 
facility.

E. When Is the Final Rule Effective?

    This rule is effective August 7, 2003. The Hazardous and Solid 
Waste Amendments of 1984, amended section 3010 of RCRA, 42 USCA 
6930(b)(1), allow rules to become effective in less than six months 
after the rule is published 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 waste. This reduction in 
existing requirements also provides a basis for making this rule 
effective immediately, upon publication, under the Administrative 
Procedure Act, pursuant to 5 USCA 553(d).

F. How Does This Final Rule Affect States?

    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, LBNL must obtain delisting authorization 
from that State before the waste may be managed as nonhazardous in that 
State.

II. Background

A. What Is a Delisting Petition?

    A delisting petition is a request from a generator to EPA or 
another agency with jurisdiction to exclude, or delist, from the RCRA 
list of hazardous waste, waste the generator believes should not be 
considered hazardous under RCRA.

B. What Regulations Allow Facilities to Delist a Waste?

    Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to 
remove their wastes from hazardous waste regulation by excluding them 
from the lists of hazardous wastes contained in Sec. Sec.  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 
265 and 268 of Title 40 of the Code of Federal Regulations. Section 
260.22 provides generators the opportunity to petition the 
Administrator to exclude a waste from a particular generating facility 
from the hazardous waste lists.

C. What Information Must the Generator Supply for a Delisting Petition?

    Petitioners must provide sufficient information to EPA 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, where he/she has a 
reasonable basis to believe that factors (including additional 
constituents) other than those for which the waste was listed could 
cause the waste to be a hazardous waste, that such factors do not 
warrant retaining the waste as a hazardous waste.

D. What Is a Demonstration of Equivalent Treatment?

    A demonstration of equivalent treatment petition is a request from 
a generator to EPA or another agency with jurisdiction to grant DETs, 
asking that EPA approve an alternative treatment method that can 
achieve a measure of performance equivalent to that achievable by the 
EPA-specified method in the LDR program.

[[Page 46953]]

E. What Regulations Allow Facilities To Request a Demonstration of 
Equivalent Treatment?

    Under 40 CFR 268.42(b), facilities may submit an application to EPA 
demonstrating that an alternative treatment method can achieve a 
measure of performance equivalent to that achieved by methods specified 
in Sec.  268.42.

F. What Information Must the Generator Supply for a Demonstration of 
Equivalent Treatment Petition?

    Petitioners must provide sufficient information to EPA, to allow 
EPA to determine that the alternative treatment method provides a 
measure of performance equivalent to that achieved by the EPA-specified 
method in the LDR program. Such information generally includes: a 
demonstration that their treatment method is in compliance with 
federal, state, and local requirements and is protective of human 
health and the environment, and demonstrations of equivalence for an 
alternative method of treatment based on a comparison of technologies.

III. EPA's Evaluation of the Waste Information and Data

A. What Waste Did LBNL Petition EPA To Delist?

    On June 30, 1999, LBNL petitioned EPA to exclude from the list of 
hazardous wastes at 40 CFR 261.31, an initial volume of approximately 
105 U.S. gallons and an approximate annual volume of 65 U.S. gallons of 
CCO treatment residues generated at the NTLF and designated as F002, 
F003, and F005 listed mixed wastes. F002, F003, and F005 wastes are 
spent halogenated and non-halogenated solvent mixtures from non-
specific sources. LBNL also included in this submittal a demonstration 
of equivalent treatment petition for this same waste as this waste is 
also high-TOC subcategory D001 ignitable wastes.
    Since submitting the petitions, the NTLF has generated an 
additional approximately 95 gallons of treatment residues. There will 
be no additional treatment residues from the CCO process. LBNL has 
closed the NTLF. Therefore, the total amount of waste LBNL has 
petitioned to delist and for which it has sought demonstration of 
equivalent treatment approval is a total fixed amount of 200 U.S. 
gallons.

B. How Did LBNL Sample and Analyze the Waste for the Petitions?

    LBNL submitted seven sets of analytical data from mixed waste 
samples and six sets of analytic data from surrogate waste samples. 
Because there are no commercially available analytical laboratories 
with the ability to analyze high activity mixed wastes from NTLF (due 
to the level of radioactivity), all analytical testing for these mixed 
wastes was conducted in-house by LBNL and NTLF staff. As a quality 
control measure, non-radioactive surrogate waste samples were sent for 
analysis to an offsite commercial laboratory and results were compared 
to the in-house data.
    For the in-house testing data, LBNL provided the experimental data 
documentation from the operation of the CCO system, and the test 
results (GC chromatograms). LBNL's in-house testing method used direct 
liquid injection gas chromatography to minimize the volume of the 
sample. The LBNL method used two detectors, a Mass Spectrometer and a 
Flame Ionization Detector. Together, these can detect organic compounds 
listed in 40 CFR part 261, appendix VIII including those compounds that 
were present in the original mixed waste and surrogate samples prior to 
treatment.
    LBNL also tested all samples for pH in-house using pH strips. LBNL 
did not test for inorganic or metal compounds because, based upon the 
processes and chemicals that LBNL used to produce these wastes, these 
compounds were not present in the original mixed waste or surrogate 
samples.
    The surrogate samples that were sent to an off-site commercial 
analytical laboratory were analyzed by EPA Test Methods 8015 (modified) 
for Industrial Solvents and Method 8260 for Volatile Organic Compounds. 
Several samples were also tested by Method 8270 for Base Neutral and 
Acid Extractable Organic Compounds (semivolatile compounds).

IV. Public Comments Received on the Proposed Rule

    EPA began accepting public comments just after the original 
delisting and DET petitions were received in June 1999. At that time, 
LBNL had just begun treatment of the mixed waste using the CCO process. 
LBNL operated the CCO system as part of its treatability study in 
accordance with DTSC regulations (22 CCR 66261.4).
    Given the passage of time, many of the public comments that EPA 
received raised concerns about the treatability study that are no 
longer pertinent. All the mixed waste has already been treated, the 
residue is no longer hazardous, and LBNL has closed the NTLF. The 
remaining residues are radioactive-only and therefore are subject to 
regulation by NRC. Thus, the potential availability of new treatment 
technologies has no bearing on EPA's action here.
    Other comments raised issues that are not relevant to the Delisting 
or DET petitions, such as the Superfund status of LBNL and the 
potential future issuance of treatment permits authorizing CCO 
technology. While EPA believes that the CCO process is equivalent to, 
and in some ways superior to combustion, under our regulations, this 
decision is site-specific. Others who are pursuing this technology will 
need to submit their own delisting and DET petitions and permit 
applications.

A. Who Submitted Comments on the Proposed Rule?

    A total of 192 comments (letters and oral testimony) were received 
during the public comment period from a wide variety of industry and 
trade associations; a local community group; universities and academic 
institutions; pharmaceutical companies; Department of Energy (DOE) 
facilities and LBNL; individuals; and government organizations. Of the 
comments received, one hundred and seventy-two of the comments were 
supportive of the proposed decisions, six comments were neutral, and 
fourteen comments were non-supportive of the proposed decisions. A more 
detailed response to comment document is included in the rulemaking 
docket.

B. What Did the Supportive Public Comments Say?

    The supportive comments came from all of the categories of groups 
listed above except for the local community group.
    In general, the supportive comments cited the small volumes of 
waste involved, the small scale of the treatment process, treatment 
onsite by the waste generators, the expertise of the staff involved in 
the treatment, and the protective controls already in place under DOE 
regulation. The supportive comments also pointed out the lack of 
affordable treatment and disposal options for mixed waste and the 
effectiveness of the CCO method as superior over required large-scale 
commercial processes (e.g. incineration) because it prevents the 
release of tritium to the environment. Many organizations also 
mentioned this proposed rule as an important initiative designed to 
help resolve a national mixed waste problem faced by the DOE, other 
research organizations, and the pharmaceutical industry.

[[Page 46954]]

    Several commenters urged EPA to promulgate a broad conditional 
exemption from RCRA for the use of CCO to all mixed wastes including 
those containing accelerator produced radionuclides for all sites that 
are Nuclear Regulatory Commission (NRC) licensees.
    EPA Responds: EPA appreciates the viewpoints expressed by these 
commenters but stresses that our decisions are site-specific and only 
apply to LBNL's CCO process and waste. Others who may wish to exclude 
their waste or demonstrate that their particular CCO system or other 
technology is equivalent to that required for treatment of ignitable 
wastes as required by our LDR regulations, would be required to submit 
their own Delisting and DET Petitions to EPA or their authorized state.

C. What Were the Non-Supportive Comments and EPA's Responses?

    The non-supportive comments came mostly from a local community 
group with a few from industry.
    (1) One industry representative expressed support for EPA's 
proposed delisting decision but did not support the DET proposed 
decision. This commenter was concerned that EPA's decision will give an 
implied seal of approval by allowing the decision to include any other 
application of the CCO technology beyond the instance of its practice 
at LBNL. This commenter was further concerned that EPA's approval is 
``sanctioning a thermal technology, not unlike incineration, when other 
alternatives are available.'' Several local citizens expressed a 
similar concern that approval of the petition could allow others to 
utilize the petition and help others ``* * * get their legal status 
established'' and that approval of the petition will open the use of 
this process for further application at LBNL.
    EPA Responds: EPA disagrees with these commenters. As previously 
described our final decision is a site-specific, one-time only 
exclusion, that applies to the approximately 200 US Gallons of residues 
from treatment of low-level mixed waste from the NTLF at LBNL. The NTLF 
that generated the original mixed waste is now closed and is not 
expected to reopen. The CCO unit has been dismantled and stored and is 
not expected to be reused at the LBNL facility.
    LBNL did purposefully share their data from the treatability study 
and their analysis of the regulatory requirements for treatment of 
mixed waste to assist others who are interested in developing national 
capacity for treatment of mixed wastes. However, others who may wish to 
demonstrate their own particular CCO technology would be required to 
submit their own DET Petition to EPA or their authorized state.
    (2) Another commenter said that the tritium should not be disposed 
in a landfill. Other commenters agreed and expressed concern that EPA 
has inaccurate information regarding the availability of mixed waste 
treatment and disposal facilities. Additionally, several commenters 
stated that a superior process for CCO is currently being tested under 
EPA's Project XL and therefore LBNL's Delisting Petition is not 
necessary.
    EPA Responds: EPA disagrees with these commenters that the 
Delisting Petition is unnecessary or that tritium should not be 
disposed to a landfill. Tritium is not a regulated hazardous waste 
constituent under EPA's RCRA program. Approval of the Delisting 
Petition in no way alters the DOE radioactive material standards 
applicable to the tritium in the treatment residuals. These wastes must 
be managed as a low-level radioactive waste.
    At this time, EPA is unaware of any available option for recycling 
of the tritium. EPA believes that the CCO process LBNL used represents 
the state of the art in capture and recovery of tritium in mixed waste.
    The wide geographic use and almost simultaneous development of this 
technology nationally and the degree of sharing of information among 
these facilities leads EPA to conclude that catalytic chemical 
oxidation of mixed wastes is a viable and effective treatment method.
    (3) Several commenters requested that EPA postpone its Delisting 
and DET decision until all the radioactivity in the treated residual 
waste has decayed, then manage the waste as a hazardous waste. 
Commenters suggest that this would be the cheapest and safest method of 
dealing with the waste and less of a health risk than future burning of 
more radioactive mixed waste.
    EPA Responds: EPA disagrees with these commenters. The original 
mixed waste has already been treated to destroy the hazardous 
constituents; the remaining treatment residuals are low-level 
radioactive waste only (tritiated water). The DET and Delisting are 
necessary administrative steps to facilitate appropriate final 
disposition of the waste. EPA calculates that the natural decay of 
these residuals would take several hundred years. The permitted mixed 
waste storage facility at LBNL is not designed or operated to store 
radioactive wastes for this long period of time. EPA believes that the 
treated residual waste is best managed as a low-level radiological 
waste at a disposal facility designed and operated to safely and 
permanently manage these wastes.
    Our decision to grant LBNL's petitions for a Delisting and DET is 
site specific and applies only to the 200 gallons of treated residual 
waste at LBNL. Any other facility that generates and wishes to treat 
its own mixed waste is subject to its own local, state, and federal 
regulations for hazardous and for radioactive wastes.
    (4) Several commenters expressed a variety of concerns regarding 
tritium and its release during the CCO process, given that ``the CCO 
system is still a very highly experimental process'' and believed that 
it was premature for EPA to make any decisions regarding the use of the 
process at this time. Commenters also asked numerous questions 
regarding specific operational details of the CCO system such as the 
possible formation of deposits or dioxins, and whether any corrosion or 
safety studies had been done.
    EPA Responds: EPA disagrees that consideration of the fate of 
tritium during the CCO process is relevant to our proposed decisions to 
grant the Delisting or the DET Petitions or that the CCO process is 
experimental or our decision premature. As previously described, 
tritium is not a RCRA hazardous constituent and therefore is not 
subject to EPA's delisting or DET petition regulations. EPA regulates 
the hazardous waste portion, while the NRC or DOE regulate the 
radioactive portion of mixed waste.
    In order for EPA to delist a particular waste, the petitioner must 
demonstrate: (1) The waste does not meet any of the criteria under 
which the waste was listed, (2) the waste does not exhibit any of the 
hazardous waste characteristics defined in Secs. 261.21 through 261.24, 
and (3) there are no additional constituents in the waste other than 
those for which it was listed, that would cause the waste to be a 
hazardous waste (40 CFR 260.22(a)). For this petition, EPA believes 
that LBNL has met the three criteria listed in 40 CFR 260.22(a) because 
the treatment residuals do not contain any detectable concentrations of 
RCRA hazardous constituents.
    The object of the CCO process was to ensure destruction of the 
hazardous constituents of the waste while capturing radioactive 
constituents. The data from the treatability study indicate a greater 
than 98% trapping efficiency for the tritiated water in the CCO system. 
EPA believes that the CCO process represents the state of the art in

[[Page 46955]]

capture and recovery of tritium and is far more effective in the 
capture of tritium than combustion in a permitted mixed waste 
incinerator. Therefore, we maintain that the CCO process provides a 
superior environmental outcome than destruction of the wastes by 
incineration.
    LBNL did not ``invent'' catalytic chemical oxidation technology nor 
did they pioneer its use for destroying mixed waste; rather, they 
adopted this proven technology to their specific type of mixed waste. 
LBNL operated their CCO process in accordance with State of California 
regulations (22 CCR 66261.4) for conducting treatability studies, which 
are designed to insure that treatability studies are conducted in a 
safe manner. Pre-approval to operate any treatment unit in compliance 
with these regulations is not required. The regulations do, however, 
require that LBNL notify the State prior to conducting the study, 
obtain an EPA identification number, limit the volume of waste treated 
and the amount of time of treatment, meet certain management standards 
for both wastes and treatment residues, keep records, and submit annual 
reports to the State. Additionally, LBNL was also subject to any other 
applicable regulatory standards from other agencies such as the 
California State Air Resources Board and DOE. DTSC confirms that LBNL 
operated the CCO process in accordance with the applicable regulations 
for treatability studies.
    (5) Several commenters asked for an independent peer review of 
LBNL's treatability study and analytical data and asked how EPA could 
allow LBNL to choose and submit only 7 sets of analytical data to 
represent 71 treatment batches.
    EPA Responds: EPA disagrees with the commenters that an independent 
peer review of the treatability study or the analytical data generated 
in support of the Delisting and DET Petition is necessary. As described 
below, EPA has full confidence that the procedures followed for 
generation and review of the data is sufficient to meet the regulatory 
requirements for Delisting and DET Petitions and are sufficient to 
support our final decision.
    EPA performed both a completeness and technical review of LBNL's 
Delisting Petition and concludes that LBNL satisfied all of the RCRA 
regulatory requirements for analytical testing in support of Delisting 
Petitions and that (1) No RCRA hazardous constituents are likely to be 
present above detection limits in the treatment residues or the bubbler 
water on silica gel generated by catalytic chemical oxidation treatment 
of the original mixed waste at LBNL, and (2) the petitioned waste does 
not exhibit any of the characteristics of ignitability, corrosivity, 
reactivity, or toxicity. See 40 CFR 261.21, 261.22, 261.23, and 261.24, 
respectively.
    EPA's Delisting regulations (40 CFR 260.22) require applicants to 
submit no less than four representative samples of analytical data in 
support of a petition. The burden of proof that the samples are 
representative of the overall petitioned waste is on the applicant. 
LBNL detailed how it determined that the seven sets of analytical data 
submitted are representative of the overall petitioned waste. The sworn 
affidavit submitted with the petition binds the petitioner to present 
truthful and accurate results under penalty of perjury. LBNL submitted 
a signed Certification of Accuracy and Responsibility required by 40 
CFR 260.22(i)(12). EPA reviewed and approved LBNL's rationale for the 
selection of representative samples. LBNL also made available to EPA 
all of the remaining analytical data from the treatability study.

V. 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) (Public Law 104-4). Because the rule will 
affect only one facility, it will not significantly or uniquely affect 
small governments, as specified in section 203 of UMRA, or communities 
of 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, and Reporting 
and recordkeeping requirements.

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

    Dated: July 25, 2003.
Alexis Strauss,
Acting Regional Administrator, Region IX.

0
For the reasons set out in the preamble, 40 CFR part 261 is amended as 
follows:

PART 261--IDENTIFICATION AND LISTING HAZARDOUS WASTE

0
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.

0
2. In Table 1, of Appendix IX of Part 261 add the following waste 
stream in alphabetical order by facility to read as follows:

[[Page 46956]]

Appendix IX to Part 261--Wastes Excluded Under Sec. Sec.  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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Lawrence Berkeley National Laboratory............................  Berkeley, California..................  Treated ignitable and spent halogenated and
                                                                                                            non-halogenated solvent mixed waste (D001,
                                                                                                            F002, F003, and F005), and bubbler water on
                                                                                                            silica gel generated during treatment at the
                                                                                                            National Tritium Labeling Facility (NTLF) of
                                                                                                            the Lawrence Berkeley National Laboratory
                                                                                                            (LBNL). This is a one-time exclusion for 200
                                                                                                            U.S. gallons of treatment residues that will
                                                                                                            be disposed of in a Nuclear Regulatory
                                                                                                            Commission (NRC) licensed or Department of
                                                                                                            Energy (DOE) approved low-level radioactive
                                                                                                            waste disposal facility, after August 7,
                                                                                                            2003.
                                                                                                           (1) Waste Management: The treated waste
                                                                                                            residue and bubbler water on silica gel must
                                                                                                            be managed in accordance with DOE or NRC
                                                                                                            requirements prior to and during disposal.
                                                                                                           (2) Reopener Language: (A) If, anytime after
                                                                                                            disposal of the delisted waste, LBNL
                                                                                                            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 organic constituent from the waste
                                                                                                            is detected in the leachate or the
                                                                                                            groundwater, then LBNL 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 (2)(A) and any other information
                                                                                                            received from any source, the Regional
                                                                                                            Administrator will make a preliminary
                                                                                                            determination as to whether the reported
                                                                                                            information requires Agency action to
                                                                                                            protect human health or the environment.
                                                                                                            Further action may include suspending, or
                                                                                                            revoking the exclusion, or other appropriate
                                                                                                            response necessary to protect human health
                                                                                                            and the environment.
                                                                                                           (C) If the Regional Administrator determines
                                                                                                            that the reported information does require
                                                                                                            Agency action, the Regional Administrator
                                                                                                            will notify LBNL 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 LBNL with an opportunity
                                                                                                            to present information as to why the
                                                                                                            proposed Agency action is not necessary or
                                                                                                            to suggest an alternative action. LBNL shall
                                                                                                            have 30 days from the date of the Regional
                                                                                                            Administrator's notice to present the
                                                                                                            information. (D) If after 30 days LBNL
                                                                                                            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.
                                                                                                           (3) Notification Requirements: LBNL must do
                                                                                                            the following before transporting the
                                                                                                            delisted waste off-site:(A) Provide a one-
                                                                                                            time written notification to any State
                                                                                                            Regulatory Agency to which or through which
                                                                                                            they will transport the delisted waste
                                                                                                            described above for disposal, 60 days before
                                                                                                            beginning such activities. (B) Update the
                                                                                                            one-time written notification if LBNL ships
                                                                                                            the delisted waste to a different disposal
                                                                                                            facility. Failure to provide this
                                                                                                            notification will result in a violation of
                                                                                                            the delisting petition and a possible
                                                                                                            revocation of the exclusion.
 
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[FR Doc. 03-20161 Filed 8-6-03; 8:45 am]
BILLING CODE 6560-50-P