[Federal Register Volume 76, Number 57 (Thursday, March 24, 2011)]
[Rules and Regulations]
[Pages 16534-16538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6892]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R03-RCRA-2010-0132; FRL-9285-7]


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 Babcock 
& Wilcox Nuclear Operations Group, Inc., the current owner, and to BWX 
Technologies, Inc., as predecessor in interest to the current owner, 
identified collectively hereafter in this preamble as ``B&W NOG,'' to 
exclude (or delist) on a one-time basis from the lists of hazardous 
waste, a certain solid waste generated at its Mt. Athos facility near 
Lynchburg, Virginia.
    After careful analysis, we have concluded that the petitioned waste 
is

[[Page 16535]]

not hazardous waste. This exclusion applies to 148 cubic yards of 
sludge currently deposited in two on-site surface impoundments 
designated as Final Effluent Ponds (FEPs) 1 and 2. Accordingly, this 
final rule conditionally excludes this volume of the petitioned waste 
from the requirements of the hazardous waste regulation under the 
Resource Conservation and Recovery Act (RCRA).

DATES: Effective Date: March 24, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R03-RCRA-2010-0132. The public docket for this final rule is 
located at the Environmental Protection Agency Region III, Land and 
Chemicals Division, Office of Technical and Administrative Support, 
Mail Code: 3LC10, 1650 Arch Street, Philadelphia, PA 19103-2029. The 
docket is available for viewing from 8 a.m. to 3 p.m., Monday through 
Friday, excluding Federal holidays. You may copy material from any 
regulatory docket at a cost of $0.15 per page. EPA requests that you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. You should make an appointment 
with the office at least 24 hours in advance. Docket materials are also 
available electronically through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For further technical information 
concerning this document or for appointments to view the docket for the 
B&W NOG facility petition, contact David M. Friedman, Environmental 
Protection Agency Region III, Land and Chemicals Division, Office of 
Technical and Administrative Support, Mail Code: 3LC10, 1650 Arch 
Street, Philadelphia, PA 19103-2029, by calling 215-814-3395 or by e-
mail at [email protected].

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

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 petitioner supply?
III. B&W NOG's Delisting Petition
    A. What waste is the subject of B&W NOG's petition?
    B. What information was submitted in support of 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 Comment Received on the Proposed Exclusion
    A. Who submitted comments on the proposed rule?
    B. Comment and Response From EPA
VI. Statutory and Executive Order Reviews

I. Overview Information

    On October 7, 2010, we proposed to grant a petition submitted by 
B&W NOG to exclude (or delist) from the definition of hazardous waste 
on a one-time basis, wastewater treatment sludge generated at its Mt. 
Athos facility near Lynchburg, VA, and currently deposited in two on-
site surface impoundments designated as FEPs 1 and 2. Today we are 
finalizing the decision to grant a conditional exclusion as described 
in the October 7, 2010 proposed rule (75 FR 62040).

II. Background

A. What is a delisting petition?

    A delisting petition is a request from a facility to EPA or an 
authorized State to exclude waste from the list of hazardous wastes on 
a site-specific basis. A facility petitions EPA because it believes the 
waste should not be considered hazardous under RCRA.
    In a delisting petition, the petitioner must show that waste 
generated at a particular facility does not meet any of the criteria 
for which the waste was listed. The criteria which EPA uses to evaluate 
a waste for listing are found in 40 CFR 261.11. An explanation of how 
these criteria apply to a waste is contained in the background document 
for that particular listed waste.
    In addition to the criteria that we used when we originally listed 
the waste, a petitioner must demonstrate that the waste does not 
exhibit any of the hazardous waste characteristics found in 40 CFR 261, 
Subpart C, and must present sufficient information for EPA to decide 
whether factors other than those for which the waste was listed warrant 
retaining it as a hazardous waste as required by Section 3001(f) of 
RCRA (42 U.S.C. 6921(f)) and 40 CFR 260.22(a).
    A petitioner who is granted a delisting by EPA or an authorized 
State remains obligated under RCRA to confirm that the delisted waste 
remains nonhazardous based on the hazardous waste characteristics and 
must ensure that the waste meets the conditions set forth.

B. What regulations allow a hazardous waste generator to petition for a 
delisting of its waste?

    Under 40 CFR 260.20 and 262.22, 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 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. 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.

C. What information must the petitioner 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, EPA must determine that the waste is not hazardous for any 
other reason.

III. B&W NOG's Delisting Petition

A. What waste is the subject of B&W NOG's petition?

    On February 21, 2003, B&W NOG (then known as BWX Technologies, 
Inc.) petitioned EPA to exclude from the lists of hazardous waste 
contained in 40 CFR 261.31 on a one-time basis, the sludge which was 
deposited in FEPs 1 and 2 because it believed that the petitioned waste 
did not meet any of the criteria for which the waste was listed and 
because there were no additional constituents or factors that would 
cause the waste to be hazardous. This sludge was derived in part from 
the treatment of wastewater in the pickle acid treatment system and, 
therefore, was designated as EPA Hazardous Waste No. F006 (wastewater 
treatment sludge from electroplating operations). The volume of sludge 
contained in each FEP at that time was determined to be 6,600 cubic 
yards, for a combined sludge volume of 13,200 cubic yards.
    In addition, although the routing of treated wastewaters into the 
FEPs has changed during the operating history of these units, at some 
point they have both received treated wastewater from the low level 
radioactive treatment system. Because of this, the sludge in these 
units is classified as a ``mixed waste'' under RCRA. A mixed waste is 
defined as a waste that contains both a radioactive component subject 
to the Atomic Energy Act (AEA), as amended, and a hazardous component 
subject to RCRA.
    On September 3, 2008, B&W NOG notified EPA that it had successfully 
completed a sludge removal project at FEPs 1 and 2. Sludge was removed 
from these units and disposed of at a mixed

[[Page 16536]]

waste disposal facility permitted under the authority of both RCRA and 
the Atomic Energy Act. B&W NOG conservatively estimated that of the 
13,200 cubic yards of sludge in both units, only 148 cubic yards (less 
than 2 percent of the original volume) remained. In this notification, 
B&W NOG requested that its petition be amended to reflect the reduced 
volume, and that the Agency proceed with the delisting request based on 
the new volume.
    For a detailed description of how the waste was generated, please 
refer to the October 7, 2010 proposed rule.

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

    B&W NOG submitted detailed descriptions of the processes generating 
the waste. B&W NOG also asserted that the waste does not meet the 
criteria for which the F006 waste was listed and that there are no 
other factors that might cause the waste to be hazardous.
    To support its assertion that the waste is not hazardous, B&W NOG 
implemented a comprehensive strategy for evaluating the sludge in the 
FEPs consisting of a two-phase sampling and analysis plan. Details of 
this plan and the analytical results from representative samples of the 
sludge are contained in the October 7, 2010 proposed rule.

IV. EPA's Evaluation and Final Decision

A. Why is EPA approving this petition?

    Today EPA is finalizing a one-time exclusion for the 148 cubic 
yards of wastewater treatment sludge generated at the B&W NOG's Mt. 
Athos facility and currently deposited in two on-site surface 
impoundments designated as FEPs 1 and 2. B&W NOG petitioned EPA to 
exclude, or delist, the wastewater treatment sludge because B&W NOG 
believed that the petitioned waste did not meet the criteria for which 
it was listed and that the waste was not hazardous for any other 
reason. 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(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 
260.22(a)(1) and (2).
    On October 7, 2010, we proposed to conditionally exclude the 
remaining 148 cubic yards of wastewater treatment sludge currently 
deposited in FEPs 1 and 2 at the B&W NOG's Mt. Athos facility from the 
list of hazardous waste in 40 CFR 261.31, and requested public comment 
on the proposed rule. For reasons stated in both the proposed rule and 
in today's preamble, we determined that B&W NOG's wastewater treatment 
sludge should be excluded from regulation as a hazardous waste.

B. What limitations are associated with this exclusion?

    This exclusion applies only to the estimated 148 cubic yards of 
sludge currently deposited in FEPs 1 and 2 at the B&W NOG's Mt. Athos 
facility.
    B&W NOG states in its petition that this sludge contains low levels 
of radioactivity, and that it is, and if delisted by EPA will remain 
subject to, Nuclear Regulatory Commission (NRC) regulations. Although 
the sludge currently resides in the FEPs and will continue to do so for 
many years, the FEPs will be subject to NRC decommissioning rules when 
they are taken out of service. At that time, any sludge remaining in 
the units will have to be removed and disposed of in a facility 
licensed to accept low-level radioactive waste.
    In order to adequately track wastes that have been delisted, when a 
decision is made to dispose of all or of part of the sludge off-site, 
we are requiring that B&W NOG provide a one-time notification to any 
State regulatory agency to which or through which the delisted waste 
will be transported for disposal. B&W NOG will be required to provide 
this notification at least 60 calendar days prior to commencing these 
activities.

C. When is the final rule effective?

    This rule is effective March 24, 2011. 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 upon publication pursuant to the Administrative 
Procedure Act, 5 U.S.C. 553(d).

D. How does this action affect 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 EPA authorization to make their own delisting 
decisions. Also, this exclusion may not be effective in States having a 
dual system that includes Federal RCRA requirements and their own 
requirements.
    We allow 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 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 hazardous waste 
program.
    We have also authorized some States to administer a delisting 
program in place of the Federal program; that is, to make delisting 
decisions pursuant to EPA authorized State regulations. Therefore, the 
petition for an exclusion that EPA is granting today does not 
necessarily apply within those authorized States. If B&W NOG transports 
the petitioned waste to, or manages the waste in, any State which has 
received delisting authorization from EPA, B&W NOG must obtain 
delisting approval from that State before it can manage the waste as 
nonhazardous in that State.

V. Public Comment Received on the Proposed Exclusion

A. Who submitted comments on the proposed rule?

    We received public comments on the October 7, 2010 proposed 
exclusion from counsel for B&W NOG, on behalf of the petitioner.

B. Comment and Response From EPA

    Comment: The commenter requested a clarification of the regulatory 
status of the minimal amounts of newly generated suspended solids that 
are not captured by the dewatering process for the currently generated 
wastewater treatment sludge, which is generated for the purpose of 
disposal as filter cake solids. As explained in the October 7, 2010 
proposed exclusion, on January 14, 2000 (65 FR 2337), EPA granted an 
exclusion to B&W NOG (known then as BWX Technologies, Inc.), for its 
currently generated F006 wastewater treatment sludge (i.e., the filter 
cake solids). However, suspended solids carry over in the effluent from 
the sludge dewatering process and settle out in the FEPs as a portion 
of the sludge accumulation in these units (currently only in FEP 2).

[[Page 16537]]

    The commenter stated that it was not clear whether the ``currently 
deposited'' wording in the proposal refers to the sludge now residing 
in the FEPs, or the current sludge plus the minimal future 
accumulations contributed by the suspended solids carryover. The 
commenter stated that there is no practical difference between the 
filter cake solids, the FEP sludge that is the subject of today's 
exclusion, and the suspended solids carryover. The commenter further 
stated that the filter cake solids and the suspended solids carryover 
are physically (except for water content) and chemically identical, 
since they are both the precipitated electroplating sludge either (1) 
captured on the filter media and subject to the January 14, 2000 
exclusion or (2) escaping that process, carried over in the effluent 
from the filtering process, subsequently settling out in FEP 2 and 
similarly subject to the earlier delisting.
    Response: As noted in the October 7, 2010, proposed exclusion, on 
January 14, 2000, EPA finalized a delisting for the current production 
of filter cake solids from the pickle acid wastewater system. The 
suspended solids carryover that is the subject of this commenter's 
request for clarification are uncaptured portions of the newly 
generated filter cake which escape the dewatering process. EPA agrees 
with the commenter that these suspended solids are identical in all 
respects to the filter cake except for water content.
    Recognizing that no filtration process is 100 percent efficient, it 
was EPA's intention that this minimal amount of newly generated 
suspended solids carryover described above be included as part of the 
January 14, 2000 exclusion for the currently generated sludge.

VI. 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 the Delisting Risk Assessment Software 
(DRAS) program, which considers health and safety risks to infants and 
children, to calculate the cumulative carcinogenic and noncarcinogenic 
risk. 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 this 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).

    Dated: March 17, 2011.
W.C. Early,
Acting Regional Administrator, Region III.
    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, 6924(y) 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

[[Page 16538]]



           Table 1--Wastes Excluded From Non-Specific Sources
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           Facility                  Address         Waste description
------------------------------------------------------------------------
 
                              * * * * * * *
Babcock & Wilcox Nuclear        Lynchburg,         Wastewater treatment
 Operations Group, Inc.,         Virginia.          sludge from
 current owner, and BWX                             electroplating
 Technologies, Inc.,                                operations
 predecessor in interest to                         (Hazardous Waste
 the current owner, identified                      Number F006)
 collectively hereafter as                          generated at the Mt.
 ``B&W NOG''.                                       Athos facility near
                                                    Lynchburg, VA and
                                                    currently deposited
                                                    in two on-site
                                                    surface impoundments
                                                    designated as Final
                                                    Effluent Ponds
                                                    (FEPs) 1 and 2. This
                                                    is a one-time
                                                    exclusion for 148
                                                    cubic yards of
                                                    sludge and is
                                                    effective after
                                                    March 24, 2011.
                                                   (1) Reopener
                                                    language.
                                                   (A) If B&W NOG
                                                    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
                                                    B&W NOG 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, B&W
                                                    NOG must provide a
                                                    one[dash]time
                                                    written notification
                                                    to any State
                                                    Regulatory Agency to
                                                    which or through
                                                    which the delisted
                                                    waste described
                                                    above will be
                                                    transported at least
                                                    60 calendar days
                                                    prior to the
                                                    commencement of such
                                                    activities. Failure
                                                    to provide such
                                                    notification will be
                                                    deemed to be a
                                                    violation of this
                                                    exclusion and may
                                                    result in revocation
                                                    of the decision and
                                                    other enforcement
                                                    action
 
                              * * * * * * *
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[FR Doc. 2011-6892 Filed 3-23-11; 8:45 am]
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