[Federal Register Volume 76, Number 18 (Thursday, January 27, 2011)]
[Rules and Regulations]
[Pages 4823-4827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1768]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R05-RCRA-2010-0843; SW-FRL-9259-1]


Hazardous Waste Management System; Identifying and Listing 
Hazardous Waste Exclusion

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA (also, ``the Agency'' or ``we'' in this preamble) is 
granting a petition submitted by Owosso Graphic Arts Inc. (OGAI), in 
Owosso, Michigan to exclude (or ``delist'') up to 244 cubic yards of 
wastewater treatment sludge per year from the list of hazardous wastes.
    The Agency has decided to grant the petition based on an evaluation 
of waste-specific information provided by OGAI and a consideration of 
public comments received. This action conditionally excludes the 
petitioned waste from the requirements of hazardous waste regulations 
under the Resource Conservation and Recovery Act (RCRA) when disposed 
of in a Subtitle D landfill permitted, licensed, or registered by a 
State to manage industrial solid waste. The rule also imposes testing 
conditions for waste generated in the future to ensure that this waste 
continues to qualify for delisting.

DATES: This final rule is effective on January 27, 2011.

[[Page 4824]]


ADDRESSES: EPA has established a docket for this action under Docket ID 
No. [EPA-R05-RCRA-2010-0843]. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the Records Center, 7th floor, U.S. EPA Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 
a.m. to 4 p.m., Monday through Friday, excluding legal holidays. We 
recommend you telephone Christopher Lambesis at (312) 886-3583 before 
visiting the Region 5 office. The public may copy material from the 
regulatory docket at 15 cents per page.

FOR FURTHER INFORMATION CONTACT: Christopher Lambesis, Land and 
Chemicals Division, (Mail Code: LR-8J), EPA Region 5, 77 West Jackson 
Boulevard, Chicago, IL 60604; telephone number: (312) 886-3583; fax 
number: (312) 692-2195; e-mail address: [email protected].

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

I. Background
    A. What is a delisting petition?
    B. What regulations allow a waste to be delisted?
II. OGAI's Petition
    A. What waste did OGAI petition to delist?
    B. What information was submitted in support of this petition?
III. EPA's Evaluation and Public Comments
    A. What decision is EPA finalizing and why?
    B. Public Comments Received and EPA's Response
IV. Final Rule
    A. What are the terms of this exclusion?
    B. When is the delisting effective?
    C. How does this action affect the States?
V. Statutory and Executive Order Reviews

I. Background

A. What is a delisting petition?

    A delisting petition is a request from a generator to exclude waste 
from the list of hazardous wastes under RCRA regulations. In a 
delisting petition, the petitioner must show that waste generated at a 
particular facility does not meet any of the criteria for which EPA 
listed the waste as set forth in 40 CFR 261.11 and the background 
document for the waste. In addition, a petitioner must demonstrate that 
the waste does not exhibit any of the hazardous waste characteristics 
(that is, ignitability, reactivity, corrosivity, and toxicity) and must 
present sufficient information for us to decide whether factors other 
than those for which the waste was listed warrant retaining it as a 
hazardous waste. See 40 CFR 260.22, 42 United States Code (U.S.C.) 
6921(f) and the background documents for a listed waste.
    A generator remains obligated under RCRA to confirm that its waste 
remains nonhazardous based on the hazardous waste characteristics even 
if EPA has ``delisted'' the wastes and to ensure that future generated 
wastes meet the conditions set.

B. What regulations allow a waste to be delisted?

    Under 40 CFR 260.20, 260.22, and 42 U.S.C. 6921(f), facilities may 
petition the EPA to remove their wastes from hazardous waste control by 
excluding them from the lists of hazardous wastes contained in 40 CFR 
261.31 and 261.32. 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 40 CFR. 40 CFR 260.22 provides a 
generator the opportunity to petition the Administrator to exclude a 
waste from the lists of hazardous wastes on a ``generator specific'' 
basis.

II. OGAI's Petition

A. What waste did OGAI petition EPA to delist?

    In May 2005, OGAI petitioned EPA to exclude an annual volume of 244 
cubic yards of F006 wastewater treatment sludges generated at its 
facility located in Owosso, Michigan from the list of hazardous wastes 
contained in 40 CFR 261.31. OGAI generates this wastewater treatment 
sludge from spent solutions that were used for chemical etching of 
magnesium plates and claims that it does not meet the criteria for 
which F006 was listed (i.e., cadmium, hexavalent chromium, nickel and 
complexed cyanide) and that there are no other factors which would 
cause the waste to be hazardous.

B. What information was submitted in support of this petition?

    OGAI submitted detailed descriptions of the process generating the 
waste including Material Safety Data Sheets (MSDSs) and other 
information regarding the makeup of materials contributing to the 
sludge. OGAI also asserted that its waste does not meet the criteria 
for which F006 waste was listed and there are no other factors that 
might cause the waste to be hazardous.
    To support its assertion that the waste is not hazardous, OGAI 
collected numerous samples of the waste for analysis. Sample collection 
and chemical analysis were conducted in accordance with a pre-approved 
sampling plan. The data was validated and any deviations from the 
sampling plan were reviewed and documented. The data was assessed for 
its intended use and, in some instances, additional samples were 
collected or analysis performed to confirm the data were of sufficient 
quality.

III. EPA's Evaluation and Public Comments

A. What decision is EPA finalizing and why?

    Today the EPA is finalizing an exclusion for up to 244 cubic yards 
of wastewater treatment sludge generated annually at the OGAI facility 
in Owosso, Michigan. OGAI petitioned EPA to exclude, or delist, the 
wastewater treatment sludge because OGAI believed that the petitioned 
waste does not meet the criteria for which it was listed and that there 
are no additional constituents or factors which could cause the waste 
to be hazardous. Review of this petition included consideration of the 
original listing criteria, as well as the additional factors required 
by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See Sec.  
222 of HSWA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(2)-(4).
    On November 4, 2010, EPA proposed to exclude or delist the 
wastewater treatment sludge generated at OGAI's facility from the list 
of hazardous wastes in 40 CFR 261.31 and accepted public comment on the 
proposed rule (75 FR 67919). EPA considered all comments received, and 
for reasons stated in both the proposal and this document, we believe 
that the wastewater treatment sludge from OGAI's facility should be 
excluded from hazardous waste control.

B. Public Comments Received and EPA's Response

    EPA received one public comment expressing concern over temporal 
variability of the waste and the potential for data manipulation. In 
response, we believe OGAI and EPA adequately addressed these concerns 
in the preparation of the petition. OGAI sampled the waste 15 different 
times over a span of almost six years. All samples were collected in 
accordance with an EPA-approved sampling plan or under specific 
approval of Agency scientists. EPA and OGAI responded to two changes in 
process chemicals with

[[Page 4825]]

additional rounds of sampling and all data were scrutinized for 
adequacy by independent validation. Several issues with quality 
assurance were documented and corrective measures implemented.
    Conservative assumptions were applied to the data before use to 
ensure the safety of the waste such as: assuming that all chromium 
present was comprised of hexavalent chromium (the most toxic form); 
assuming 100% of a hazardous constituent present in the waste leached 
into the hypothetical landfill; and including conservative quantitation 
of tentatively identified compounds in analysis by mass spectoscopy. 
EPA representatives also visited the facility to review the waste 
generating process. Furthermore, OGAI remains obligated to periodically 
sample the waste and report changes to the process (see below).

IV. Final Rule

A. What are the terms of this exclusion?

    OGAI must dispose of this waste in a Subtitle D landfill permitted 
or licensed by a state, and will remain obligated to verify that the 
waste meets the allowable concentrations set forth here. OGAI must also 
continue to determine whether the waste is identified in subpart C of 
40 CFR pursuant to Sec.  261.11(c). This exclusion applies only to a 
maximum annual volume of 244 cubic yards and is effective only if all 
conditions contained in this rule are satisfied.

B. When is the delisting effective?

    This rule is effective January 27, 2011. The Hazardous and Solid 
Waste Amendments of 1984 amended section 3010 of RCRA to allow rules to 
become effective in less than six months when the regulated community 
does not need the six-month period to come into compliance. This rule 
reduces rather than increases the existing requirements and, therefore, 
is effective immediately upon publication under the Administrative 
Procedure Act, pursuant to 5 U.S.C. 553(d).

C. How does this action affect the States?

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

V. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this rule is not of general applicability 
and therefore is not a regulatory action subject to review by the 
Office of Management and Budget (OMB). 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.) because it applies to a 
particular facility only. Because this rule is 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, 204, and 205 of the 
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because 
this rule will affect only a particular facility, it will not 
significantly or uniquely affect small governments, as specified in 
section 203 of UMRA. Because this rule will affect only a particular 
facility, this final rule does not have federalism implications. It 
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, ``Federalism'' (64 
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply 
to this rule.
    Similarly, because this rule will affect only a particular 
facility, this final rule does not have tribal implications, as 
specified in Executive Order 13175, ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000). Thus, 
Executive Order 13175 does not apply to this rule. This rule also is 
not subject to Executive Order 13045, ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), because it is not economically significant as defined in 
Executive Order 12866, and because the Agency does not have reason to 
believe the environmental health or safety risks addressed by this 
action present a disproportionate risk to children. The basis for this 
belief is that the Agency used DRAS, which considers health and safety 
risks to children, to calculate the maximum allowable concentrations 
for this rule. This rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001), because it 
is not a significant regulatory action under Executive Order 12866. 
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 note) do not apply. As required by section 3 
of Executive Order 12988, ``Civil Justice Reform'' (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.
    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, and Reporting 
and recordkeeping requirements.


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


[[Page 4826]]


    Dated: January 19, 2011.
Bruce F. Sypniewski,
Acting Director, Land and Chemicals Division.

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

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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.


0
2. In Table 1 of Appendix IX of part 261 the following waste stream is 
added 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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                              * * * * * * *
Owosso Graphic Arts Inc.......  Owosso, Michigan.  Wastewater treatment
                                                    sludges, F006,
                                                    generated at Owosso
                                                    Graphic Arts, Inc.
                                                    (OGAI) facility in
                                                    Owosso, Michigan, at
                                                    a maximum annual
                                                    rate of 244 cubic
                                                    yards per year. The
                                                    sludge must be
                                                    disposed of in a
                                                    Subtitle D landfill
                                                    licensed, permitted,
                                                    or otherwise
                                                    authorized by a
                                                    state to accept the
                                                    delisted wastewater
                                                    treatment sludge.
                                                    The exclusion
                                                    becomes effective as
                                                    of January 27, 2011.
                                                   1. Delisting Levels:
                                                    (A) The constituent
                                                    concentrations
                                                    measured in a
                                                    leachate extract may
                                                    not exceed the
                                                    following
                                                    concentrations (mg/
                                                    L): antimony--3.15;
                                                    arsenic--0.25;
                                                    cadmium--1;
                                                    chromium--5; lead--
                                                    5; and zinc--6,000.
                                                    (B) Maximum
                                                    allowable
                                                    groundwater
                                                    concentrations (mg/
                                                    L) are as follows:
                                                    antimony--0.006;
                                                    arsenic--0.0005;
                                                    cadmium--0.005;
                                                    chromium--0.1; lead--
                                                    0.015; and zinc--
                                                    11.3.
                                                   2. Annual
                                                    Verification
                                                    Testing: To verify
                                                    that the waste does
                                                    not exceed the
                                                    specified delisting
                                                    concentrations, OGAI
                                                    must collect and
                                                    analyze one waste
                                                    sample on an annual
                                                    basis using methods
                                                    with appropriate
                                                    detection
                                                    concentrations and
                                                    elements of quality
                                                    control. SW-846
                                                    Method 1311 must be
                                                    used for generation
                                                    of the leachate
                                                    extract used in the
                                                    testing of the
                                                    delisting levels if
                                                    oil and grease
                                                    comprise less than 1
                                                    percent of the
                                                    waste. SW-846 Method
                                                    1330A must be used
                                                    for generation of
                                                    the leaching extract
                                                    if oil and grease
                                                    comprise 1 percent
                                                    or more of the
                                                    waste. SW-846 Method
                                                    9071B must be used
                                                    for determination of
                                                    oil and grease. SW-
                                                    846 Methods 1311,
                                                    1330A, and 9071B are
                                                    incorporated by
                                                    reference in 40 CFR
                                                    260.11. A total
                                                    analysis of the
                                                    waste (accounting
                                                    for any filterable
                                                    liquids and the
                                                    dilution factor
                                                    inherent in the TCLP
                                                    method) may be used
                                                    to estimate the TCLP
                                                    concentration as
                                                    provided for in
                                                    section 1.2 of
                                                    Method 1311.
                                                   3. Changes in
                                                    Operating
                                                    Conditions: OGAI
                                                    must notify the EPA
                                                    in writing if the
                                                    manufacturing
                                                    process, the
                                                    chemicals used in
                                                    the manufacturing
                                                    process, the
                                                    treatment process,
                                                    or the chemicals
                                                    used in the
                                                    treatment process
                                                    significantly
                                                    change. OGAI must
                                                    handle wastes
                                                    generated after the
                                                    process change as
                                                    hazardous until it
                                                    has: demonstrated
                                                    that the wastes
                                                    continue to meet the
                                                    delisting
                                                    concentrations in
                                                    section 1;
                                                    demonstrated that no
                                                    new hazardous
                                                    constituents listed
                                                    in appendix VIII of
                                                    part 261 have been
                                                    introduced; and it
                                                    has received written
                                                    approval from EPA.
                                                   4. Data Submittals:
                                                    OGAI must submit the
                                                    data obtained
                                                    through verification
                                                    testing or as
                                                    required by other
                                                    conditions of this
                                                    rule to U.S. EPA
                                                    Region 5, RCRA
                                                    Delisting Program
                                                    (LR-8J), 77 West
                                                    Jackson Boulevard,
                                                    Chicago, IL 60604.
                                                    The annual
                                                    verification data
                                                    and certification of
                                                    proper disposal must
                                                    be submitted upon
                                                    the anniversary of
                                                    the effective date
                                                    of this exclusion.
                                                    OGAI must compile,
                                                    summarize, and
                                                    maintain on site for
                                                    a minimum of five
                                                    years records of
                                                    operating conditions
                                                    and analytical data.
                                                    OGAI must make these
                                                    records available
                                                    for inspection. All
                                                    data must be
                                                    accompanied by a
                                                    signed copy of the
                                                    certification
                                                    statement in 40 CFR
                                                    260.22(i)(12).

[[Page 4827]]

 
                                                   5. Reopener Language--
                                                    (A) If, anytime
                                                    after disposal of
                                                    the delisted waste,
                                                    OGAI possesses or is
                                                    otherwise made aware
                                                    of any data
                                                    (including but not
                                                    limited to leachate
                                                    data or groundwater
                                                    monitoring data)
                                                    relevant to the
                                                    delisted waste
                                                    indicating that any
                                                    constituent is at a
                                                    concentration in the
                                                    leachate higher than
                                                    the specified
                                                    delisting
                                                    concentration, or is
                                                    in the groundwater
                                                    at a concentration
                                                    higher than the
                                                    maximum allowable
                                                    groundwater
                                                    concentration in
                                                    paragraph (1), then
                                                    OGAI 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 (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 OGAI 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 OGAI with
                                                    an opportunity to
                                                    present information
                                                    as to why the
                                                    proposed Agency
                                                    action is not
                                                    necessary or to
                                                    suggest an
                                                    alternative action.
                                                    OGAI shall have 30
                                                    days from the date
                                                    of the Regional
                                                    Administrator's
                                                    notice to present
                                                    the information. (D)
                                                    If after 30 days
                                                    OGAI presents no
                                                    further information
                                                    or after a review of
                                                    any submitted
                                                    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.
 
                              * * * * * * *
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[FR Doc. 2011-1768 Filed 1-26-11; 8:45 am]
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