[Federal Register Volume 68, Number 176 (Thursday, September 11, 2003)]
[Rules and Regulations]
[Pages 53517-53520]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23161]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-7557-5]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA, also the Agency or 
we in this preamble) today is granting a petition submitted by the 
Southeastern Public Service Authority (SPSA) and Onyx Environmental 
Services (Onyx) to exclude (or delist), on a one-time basis, a 
combustion ash from the lists of hazardous wastes.
    After careful analysis, we have concluded that the petitioned waste 
does not present an unacceptable risk when disposed of in a Subtitle D 
(nonhazardous waste) landfill. This exclusion applies to combustion ash 
previously generated at the SPSA Power Plant in Portsmouth, Virginia, 
which is currently located at the SPSA Regional Landfill in Suffolk, 
Virginia. Accordingly, this final rule conditionally excludes a 
specific volume of the petitioned waste from the requirements of the 
hazardous waste regulations under the Resource Conservation and 
Recovery Act (RCRA) when the petitioned waste is disposed of in a 
Subtitle D landfill which is permitted, licensed, or registered by a 
State to manage municipal or industrial solid waste.

EFFECTIVE DATE: September 11, 2003.

ADDRESSES: The official docket for this rule is located at the offices 
of U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA, 19103-2029, 
and is available for you to view from 8:30 a.m. to 5 p.m., Monday 
through Friday, except on Federal holidays. Please call David M. 
Friedman at (215) 814-3395 for appointments. The public may copy 
material from the docket at $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For 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 action is kept in a paper format, and is 
maintained at the address in the ADDRESSES section at the beginning of 
this document.

Outline

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

I. Overview Information

    On June 18, 2003, we proposed to grant a petition submitted by 
SPSA/Onyx to exclude (or delist) from the definition of hazardous waste 
on a one-time basis, a combustion ash previously generated at the SPSA 
Power Plant in Portsmouth, Virginia, which is currently located at the 
SPSA Regional Landfill in Suffolk, Virginia. Today we are finalizing 
the decision to grant a conditional exclusion as described in the June 
18, 2003, proposed rule.

II. Background

A. What Is a Delisting Petition?

    A delisting petition is a formal request from a generator asking 
EPA to exclude a specific waste from the lists of hazardous waste 
contained in the RCRA regulations, because the generator believes that 
its waste should not be considered hazardous.
    In order for a petition to succeed, a petitioner must first show 
that a waste generated at its facility does not meet any of the 
criteria for which the waste was listed. The criteria which we use to 
list wastes are found in 40 CFR 261.11. An explanation of how these 
criteria apply to a particular waste is contained in the background 
document for that listed waste.
    In addition, the petitioner must demonstrate that the waste does 
not exhibit any of the hazardous waste characteristics defined in 
subpart C of 40 CFR part 261 (i.e., ignitability, corrosivity, 
reactivity, and toxicity), and must present sufficient information for 
us to determine whether any other factors (including additional 
constituents) warrant retaining the waste as a hazardous waste.
    A generator remains obligated under RCRA to confirm that its waste 
remains non-hazardous based on the hazardous waste characteristics 
defined in subpart C of 40 CFR part 261, even if EPA has delisted its 
waste.

B. What Regulations Allow a Hazardous Waste Generator To Petition for a 
Delisting of Its Waste?

    Under 40 CFR 260.20 and 260.22, a generator may petition EPA to 
remove its waste from hazardous waste regulation by excluding it from 
the lists of hazardous wastes contained in 40 CFR part 261, subpart D. 
Specifically, 40 CFR 260.20 allows any person to petition the 
Administrator to modify or revoke any provision of parts 260 through 
266, 268 and 273 of Title 40 of the Code of Federal Regulations. 40 CFR 
260.22 provides generators the opportunity to petition the 
Administrator to exclude a waste on a ``generator-specific'' basis from 
the hazardous waste lists.

[[Page 53518]]

C. What Information Must the Generator Supply?

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

III. SPSA/Onyx's Delisting Petition

A. What Waste Is the Subject of SPSA/Onyx's Petition?

    SPSA is the regional solid waste management agency for southeastern 
Virginia, where it operates a resource recovery facility consisting of 
a Refuse Derived Fuel (RDF) Plant and a Power Plant, and a disposal 
facility consisting of a Regional Landfill.
    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.
    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 Regional 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 RDF 
plant and burned in SPSA's Power Plant in Portsmouth, Virginia. Due to 
a shipping error, a small amount of this waste consisted of materials 
containing the spent non-halogenated solvent, methyl ethyl ketone (EPA 
Hazardous Waste Number F005). See the June 18, 2003, Federal Register, 
(68 FR 36528) for more details.
    In the June 18, 2003 Federal Register, we described how a portion 
of the combustion ash had been used as daily cover in the Regional 
Landfill before SPSA was notified that the ash was subject to 
regulation as a hazardous waste. Furthermore, we stated that the area 
of the Landfill where the combustion ash was used as cover was cordoned 
off and that operations were suspended in this area. While this 
statement was true at the time that the petition was submitted, we have 
since been informed by SPSA that the Virginia Department of 
Environmental Quality has allowed operations to resume in this portion 
of the Landfill. However, the area in which the subject combustion ash 
is located has been marked in case removal of the ash is required. The 
resumption of operations does not impact the results of EPA's 
evaluation of the risks associated with management of this waste.

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

    In order to support the petition, SPSA/Onyx submitted detailed 
information related to the shipments of materials received for 
destruction at SPSA's Power Plant and detailed analytical results from 
representative samples of the ash obtained by SPSA/Onyx on October 15, 
2002, and January 28, 2003.

IV. EPA's Evaluation and Final Decision

A. Why Is EPA Approving This Petition?

    SPSA/Onyx petitioned EPA to exclude or delist on a one-time basis, 
the 1410 cubic yards of combustion ash currently located at the SPSA 
Regional Landfill because SPSA/Onyx believes that the petitioned waste 
does not meet the criteria for which it was listed as a hazardous 
waste, nor does it exhibit any characteristic of a hazardous waste. 
SPSA/Onyx also believes that the waste does not contain other 
constituents in concentrations that would cause it to be hazardous.
    Review of this petition included consideration of the original 
listing criteria, as well as factors (including additional 
constituents) other than those for which the waste was listed, as 
required by the Hazardous and Solid Waste Amendments (HSWA) of 1984 to 
RCRA. See, section 3001 of RCRA, 42 U.S.C. 6921(f), and 40 CFR 
260.22(a)(1) and (2).
    On June 18, 2003, we proposed to conditionally exclude SPSA/Onyx's 
combustion ash from the list of hazardous wastes in 40 CFR 261.31, and 
requested public comment on the proposed rule. For reasons stated in 
both the proposed rule and this document, we believe that SPSA/Onyx's 
combustion ash should be excluded from hazardous waste regulation.

B. What Limitations Are Associated With This Exclusion?

    This exclusion applies 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.
    SPSA/Onyx state in their petition that the waste, if delisted, will 
remain at the SPSA Regional Landfill. However, as a matter of policy, 
EPA does not specify a specific location for disposal of a delisted 
waste, only that it be disposed of in a Subtitle D landfill. In order 
to adequately track wastes that have been delisted, in the event that a 
decision is made to dispose of all or part 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 at least sixty (60) calendar days prior to 
commencing these activities.

C. When Is the Final Rule Effective?

    This rule is effective September 11, 2003. HSWA amended section 
3010 of RCRA to allow rules to become effective in less than six months 
when the regulated community does not need the six-month period to come 
into compliance. That is the case here because this rule reduces, 
rather than increases, the existing requirements for persons generating 
hazardous wastes. For these same reasons, this rule can and will become 
effective immediately (that is, upon publication in the Federal 
Register) under the Administrative Procedure Act, pursuant to 5 U.S.C. 
553(d).

D. How Does This Action Affect States?

    Because EPA is issuing today's exclusion under the Federal RCRA 
delisting program, only States subject to Federal RCRA delisting 
provisions would be directly affected. This would exclude two 
categories of States: States having a dual system that includes Federal 
RCRA requirements and their own requirements, and States which have 
received EPA's authorization to make their own delisting decisions. We 
describe these two situations below.
    We allow states to impose their own non-RCRA regulatory 
requirements that are more stringent than EPA's under section 3009 of 
RCRA. These more stringent requirements may include a provision that 
prohibits a Federally-issued exclusion from taking effect in the State, 
or that prohibits a Federally-issued exclusion from taking effect in 
the State until the State approves the exclusion through a separate 
State administrative action. Because a dual system (that is, both 
Federal and State programs) may regulate a petitioner's waste, we urge 
petitioners to contact the applicable State regulatory authorities or 
agencies to establish the status of their waste under that State's 
program.
    We have also authorized some States to administer a delisting 
program in place of the Federal program; that is, to make State 
delisting decisions.

[[Page 53519]]

Therefore, this exclusion does not necessarily apply within those 
authorized States. If SPSA/Onyx transports the petitioned waste to, or 
manages the waste in, any State with delisting authorization, SPSA/Onyx 
must obtain delisting approval from that State before it can manage the 
waste as nonhazardous in that State.

V. Public Comments Received on the Proposed Exclusion

A. Who Submitted Comments on the Proposed Rule?

    We received public comments on the June 18, 2003, proposed 
exclusion from one individual in Portsmouth, Virginia.

B. Comments and Responses From EPA

    Comment: The solvent rags were incorrectly classified as a spent 
solvent waste (F005), and, therefore, are not hazardous waste. In order 
to be a F005 listed waste, the spent solvent would have to contain any 
concentration of the solvents specified in the F005 listing, and 
contain at least 10 percent by volume of any of the solvents listed in 
F001, F002, F003, or F004. A solvent consisting of 100 percent methyl 
ethyl ketone would not be considered an F005 listed waste.
    Response: The commenter incorrectly reads the spent solvent 
listings. On May 19, 1980, EPA promulgated the first phase of the 
hazardous waste regulations including the spent solvent listings 
(Hazardous waste nos. F001-F005) (See 40 CFR 261.31). These listings 
applied only to spent solvents resulting from the use of individual 
solvents that were technical grade or in pure form, and the still 
bottoms from the recovery of these spent solvents. EPA soon recognized 
that limiting the universe of the spent solvent listings to wastes 
resulting from the use of only single ingredient solvents created a 
regulatory loophole by allowing wastes resulting from the use of 
mixtures containing one or more of the listed solvents to remain 
unregulated. In the final rule published in the Federal Register on 
December 31, 1985 (50 FR 53315), EPA amended these listings to include 
spent solvents resulting from the use of solvent mixtures or blends 
which contained, before use, 10 percent or more total listed solvent by 
volume in addition to spent solvents resulting from the use of listed 
single ingredient solvents. Therefore, the current listings for spent 
solvents (such as the F005 listing) apply to the following three (3) 
categories: spent solvents resulting from the use of individual (single 
ingredient) listed solvents that are technical grade or in pure form, 
spent solvents resulting from the use of solvent mixtures or blends 
which contain, before use, 10 percent or more total listed solvent by 
volume, and still bottoms from the recovery of any of these spent 
solvents.
    Comment: The commenter noted that although lead and chromium were 
present in detectable concentrations in the total constituent analysis, 
they were not present above the reporting limit when the Toxicity 
Characteristic Leaching Procedure (TCLP) analysis was performed on this 
waste. The commenter theorized that the presence of iron in the 
combustion ash was masking the TCLP analysis for lead and chromium, and 
requested that EPA require that the ash be analyzed for total iron 
concentration.
    Response: After careful consideration, we have decided not to ask 
SPSA/Onyx to collect additional samples for iron analysis. There are a 
number of factors that affect the leaching potential of inorganic 
constituents. Among them are the pH, redox conditions, liquid-to-solid 
ratio, and solubility. While the addition of iron in the form of fines, 
filings, or dust, may temporarily retard the leaching of lead, it does 
not provide long-term treatment. Therefore, EPA determined that this 
practice constitutes ``impermissible dilution'' when done for the 
purpose of achieving a treatment standard for lead under the land 
disposal restrictions regulations. (See 40 CFR 268.3(d)).
    However, this is not the case at SPSA's waste-to-energy facility 
where SPSA aggressively removes ferrous (and aluminum) metals from the 
waste stream. Large pieces of metal are manually removed from the waste 
stream both at SPSA's transfer stations and on the tipping floor of the 
RDF Plant. Then, a system of magnets removes the small ferrous metal 
items from the waste stream prior to it being sent to the power plant 
for combustion, thereby significantly reducing levels of iron in the 
combustion ash. SPSA performs TCLP metals analysis on the ash generated 
by its waste-to-energy facility on a quarterly basis.

VI. Administrative Assessments

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a rule of general applicability and therefore is not a 
``regulatory action'' subject to review by the Office of Management and 
Budget. Because this action is a rule of particular applicability 
relating to a particular facility, it is not subject to the regulatory 
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.), or to sections 202, 203, and 205 of the Unfunded Mandates 
Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because the rule will affect 
only one facility, it will not significantly or uniquely affect small 
governments, as specified in section 203 of UMRA, or communities of 
Indian tribal governments, as specified in Executive Order 13175 (65 FR 
67249, November 6, 2000). For the same reason, this rule will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This 
rule also is not subject to Executive Order 13045 (62 FR 19885, April 
23, 1997), because it is not economically significant.
    This rule does not involve technical standards; thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272) do not apply. As required by 
section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in 
issuing this rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 804 exempts from section 801 the following types 
of rules (1) rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties (5 U.S.C. 804(3)). EPA is not 
required to submit a rule report regarding today's action under section 
801 because this is a rule of particular applicability.

List of Subjects in 40 CFR Part 261

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

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


[[Page 53520]]


    Dated: September 2, 2003.
Donald S. Welsh,
Regional Administrator, Region III.


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

PART 261--IDENTIFICATION AND LISTING OF 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, and 6938.

Appendix IX of Part 261--[Amended]

0
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
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                Facility                             Address                        Waste description
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                                                  * * * * * * *
Southeastern Public Service Authority     Suffolk, Virginia...........  Combustion ash generated from the
 (SPSA) and Onyx Environmental Service                                   burning of spent solvent methyl ethyl
 (Onyx).                                                                 ketone (Hazardous Waste Number F005)
                                                                         and disposed in a Subtitle D landfill.
                                                                         This is a one-time exclusion for 1410
                                                                         cubic yards of ash and is effective
                                                                         after September 11, 2003.
                                                                        (1) Reopener Language
                                                                        (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 sixty (60)
                                                                         calendar days prior to the commencement
                                                                         of such activities. Failure to provide
                                                                         such notification will be deemed to be
                                                                         a violation of this exclusion and may
                                                                         result in revocation of the decision
                                                                         and other enforcement action.
 
                                                  * * * * * * *
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[FR Doc. 03-23161 Filed 9-10-03; 8:45 am]
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