[Federal Register Volume 60, Number 235 (Thursday, December 7, 1995)]
[Proposed Rules]
[Pages 62794-62806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29897]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261

[SW-FRL-5342-6]


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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule and request for comment.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) today is 
proposing to grant a petition submitted by Bethlehem Steel Corporation 
(``BSC''), Lackawanna, New York, to exclude (or ``delist''), on a one-
time basis, certain solid wastes contained in a landfill from being 
listed hazardous wastes. Based on careful analyses of the waste-
specific information provided by the petitioner, the Agency has 
concluded that BSC's petitioned waste will not adversely affect human 
health and the environment. This action responds to BSC's petition to 
delist these wastes on a ``generator-specific'' basis from the 
hazardous waste lists. If the proposed decision is finalized, the 
petitioned waste will not be subject to regulation under Subtitle C of 
the Resource Conservation and Recovery Act (RCRA).
    The Agency is also proposing the use of a fate and transport model 
(the ``EPACML'' model) to evaluate the potential impact of the 
petitioned waste on human health and the environment, based on the 
waste-specific information provided by the petitioner. Specifically, 
EPA proposes to use this model to predict the concentration of 
hazardous constituents that may be released from the petitioned waste 
into groundwater if the petitioned waste is delisted and then disposed 
of in a Subtitle D landfill.

DATES: EPA is requesting public comments on this proposed decision and 
on the applicability of the fate and transport model used to evaluate 
the petition. Comments will be accepted until January 22, 1996. 
Comments postmarked after the close of the comment period will be 
stamped ``late''.
    Any person may request a hearing on this proposed decision by 
filing a request with the Director, Hazardous Waste Identification 
Division, Office of Solid Waste, whose address appears below, by 
December 22, 1995. The request must contain the information prescribed 
in Sec. 260.20(d).

ADDRESSES: Send three copies of your comments to EPA. Two copies should 
be sent to the Docket Clerk, Office of Solid Waste (Mail Code 5305), 
U.S. Environmental Protection Agency, 401 

[[Page 62795]]
M Street SW., Washington, DC 20460. A third copy should be sent to 
James Kent, Waste Identification Branch, Office of Solid Waste (Mail 
Code 5304), U.S. Environmental Protection Agency, 401 M Street SW., 
Washington, DC 20460. Identify your comments at the top with this 
regulatory docket number: ``F-95-B5EP-FFFFF''.
    Requests for a hearing should be addressed to the Director, 
Hazardous Waste Identification Division, Office of Solid Waste (Mail 
Code 5304), U.S. Environmental Protection Agency, 401 M Street SW., 
Washington, DC 20460.
    The RCRA regulatory docket for this proposed rule is located at 
Crystal Gateway #1, 1st Floor, 1235 Jefferson Davis Highway, Arlington, 
VA, and is available for viewing from 9:00 a.m. to 4:00 p.m., Monday 
through Friday, excluding Federal holidays. Call (703) 603-9230 for 
appointments. The public may copy material from any regulatory docket 
at no cost for the first 100 pages, and at a cost of $0.15 per page for 
additional copies.

FOR FURTHER INFORMATION, CONTACT: For general information, contact the 
RCRA Hotline, toll free at (800) 424-9346, or at (703) 412-9810. For 
technical information concerning this notice, contact Chichang Chen, 
Waste Identification Branch, Office of Solid Waste (Mail Code 5304), 
U.S. Environmental Protection Agency, 401 M Street SW., Washington, DC 
20460, (202) 260-7392.

SUPPLEMENTARY INFORMATION:

I. Background

A. Authority

    On January 16, 1981, as part of its final and interim final 
regulations implementing Section 3001 of RCRA, EPA published an amended 
list of hazardous wastes from non-specific and specific sources. This 
list has been amended several times, and is published in Sec. 261.31 
and Sec. 261.32. These wastes are listed as hazardous because they 
exhibit one or more of the characteristics of hazardous wastes 
identified in Subpart C of Part 261 (i.e., ignitability, corrosivity, 
reactivity, and toxicity) or meet the criteria for listing contained in 
Sec. 261.11 (a)(2) or (a)(3).
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
that is described in these regulations generally is hazardous, a 
specific waste from an individual facility meeting the listing 
description may not be. For this reason, Sec. 260.20 and Sec. 260.22 
provide an exclusion procedure, allowing persons to demonstrate that a 
specific waste from a particular generating facility should not be 
regulated as a hazardous waste.
    To have their wastes excluded, petitioners must show, first, that 
wastes generated at their facilities do not meet any of the criteria 
for which the wastes were listed. See Sec. 260.22(a) and the background 
documents for the listed wastes. Second, the Administrator must 
determine, where he/she has a reasonable basis to believe that factors 
(including additional constituents) other than those for which the 
waste was listed could cause the waste to be a hazardous waste, that 
such factors do not warrant retaining the waste as a hazardous waste. 
Accordingly, a petitioner also must demonstrate that the waste does not 
exhibit any of the hazardous waste characteristics (i.e., ignitability, 
reactivity, corrosivity, and toxicity), and must present sufficient 
information for the Agency to determine whether the waste contains any 
other toxicants at hazardous levels. See Sec. 260.22(a), 42 U.S.C. 
Sec. 6921(f), and the background documents for the listed wastes. 
Although wastes which are ``delisted'' (i.e., excluded) have been 
evaluated to determine whether or not they exhibit any of the 
characteristics of hazardous waste, generators remain obligated under 
RCRA to determine whether or not their waste remains non-hazardous 
based on the hazardous waste characteristics.
    In addition, residues from the treatment, storage, or disposal of 
listed hazardous wastes and mixtures containing listed hazardous wastes 
are also considered hazardous wastes. See Secs. 261.3 (a)(2)(iv) and 
(c)(2)(i), referred to as the ``mixture'' and ``derived-from'' rules, 
respectively. Such wastes are also eligible for exclusion and remain 
hazardous wastes until excluded. On December 6, 1991, the U.S. Court of 
Appeals for the District of Columbia vacated the ``mixture/derived 
from'' rules and remanded them to the Agency on procedural grounds. 
Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). On March 3, 1992, 
EPA reinstated the mixture and derived-from rules, and solicited 
comments on other ways to regulate waste mixtures and residues (57 FR 
7628). The Agency plans to address issues related to waste mixtures and 
residues in a future rulemaking.

B. Approach Used To Evaluate This Petition

    This petition requests a delisting for a hazardous waste listed as 
K060. In making the initial delisting determination, the Agency 
evaluated the petitioned waste against the listing criteria and factors 
cited in Secs. 261.11 (a)(2) and (a)(3). Based on this review, the 
Agency agrees with the petitioner that the waste is non-hazardous with 
respect to the original listing criteria. (If the Agency had found, 
based on this review, that the waste remained hazardous based on the 
factors for which the waste was originally listed, EPA would have 
proposed to deny the petition.) EPA then evaluated the waste with 
respect to other factors or criteria to assess whether there is a 
reasonable basis to believe that such additional factors could cause 
the waste to be hazardous. See Secs. 260.22 (a) and (d). The Agency 
considered whether the waste is acutely toxic, and considered the 
toxicity of the constituents, the concentration of the constituents in 
the waste, their tendency to migrate and to bioaccumulate, their 
persistence in the environment once released from the waste, plausible 
and specific types of management of the petitioned waste, the 
quantities of waste generated, and waste variability.
    For this delisting determination, the Agency used such information 
to identify plausible exposure routes (i.e., groundwater, surface 
water, air) for hazardous constituents present in the petitioned waste. 
The Agency determined that disposal in a Subtitle D landfill is the 
most reasonable, worst-case disposal scenario for BSC's petitioned 
waste, and that the major exposure route of concern would be ingestion 
of contaminated groundwater. Therefore, the Agency is proposing to use 
a particular fate and transport model (the ``EPACML'' model) to predict 
the maximum allowable concentrations of hazardous constituents that may 
be released from the petitioned waste after disposal and to determine 
the potential impact of the disposal of BSC's petitioned waste on human 
health and the environment.
    Specifically, the Agency used the maximum estimated waste volume 
and the maximum reported leachate concentrations as inputs to estimate 
the constituent concentrations in the groundwater at a hypothetical 
receptor well downgradient from the disposal site. The calculated 
receptor well concentrations (referred to as compliance-point 
concentrations) were then compared directly to the health-based levels 
used in delisting decision-making for the hazardous constituents of 
concern.
    EPA believes that this fate and transport model represents a 
reasonable worst-case scenario for disposal of the petitioned waste in 
a landfill, and that a reasonable worst-case scenario is appropriate 
when evaluating whether a waste should be relieved of the protective 
management constraints of 

[[Page 62796]]
RCRA Subtitle C. The use of a reasonable worst-case scenario results in 
conservative values for the compliance-point concentrations and ensures 
that the waste, once removed from hazardous waste regulation, will not 
pose a threat to human health or the environment. Because a delisted 
waste is no longer subject to hazardous waste control, the Agency is 
generally unable to predict and does not control how a waste will be 
managed after delisting. Therefore, EPA currently believes that it is 
inappropriate to consider extensive site-specific factors when applying 
the fate and transport model. For example, a generator may petition the 
Agency for delisting of a metal hydroxide sludge which is currently 
being managed in an on-site landfill and provide data on the nearest 
drinking water well, permeability of the aquifer, dispersivities, etc. 
If the Agency were to base its evaluation solely on these site-specific 
factors, the Agency might conclude that the waste, at that specific 
location, cannot affect the closest well, and the Agency might grant 
the petition. Upon promulgation of the exclusion, however, the 
generator is under no obligation to continue to manage the waste at the 
on-site landfill. In fact, the generator may well choose to either send 
the delisted waste off site immediately, or eventually reach the 
capacity of the on-site facility and subsequently send the waste off 
site to a facility which may have very different hydrogeological and 
exposure conditions.
    The Agency also considers the applicability of ground-water 
monitoring data during the evaluation of delisting petitions. In this 
case, the Agency determined that, because BSC is seeking a delisting 
for waste managed on-site, ground-water monitoring data collected from 
the area where the petitioned waste is contained are necessary to 
determine whether hazardous constituents have migrated to the 
underlying groundwater. Ground-water monitoring data collected from 
BSC's monitoring wells will help characterize the potential impact (if 
any) of the disposal of BSC's waste on human health and the 
environment.
    The Agency provides notice and an opportunity for comment before 
granting or denying a final exclusion. Thus, a final decision will not 
be made until all timely public comments (including those at public 
hearings, if any) on today's proposal are addressed. Late comments will 
be considered to the extent possible.

II. Disposition of Delisting Petition Bethlehem Steel Corporation, 
Lackawanna, New York

A. Petition for Exclusion

    Bethlehem Steel Corporation (BSC), located in Lackawanna, New York, 
was engaged in primary metal-making and coke-making operations prior to 
1983. BSC petitioned the Agency to exclude, on a one-time basis, the 
waste contained in an on-site landfill, presently listed as EPA 
Hazardous Waste No. K060--``Ammonia still lime sludge from coking 
operations''. The listed constituents of concern for EPA Hazardous 
Waste No. K060 are cyanide, naphthalene, phenolic compounds, and 
arsenic. BSC refers to this landfill as Hazardous Waste Management Unit 
No. 2 (HWM-2). Although only a portion of the waste in the landfill is 
the ammonia still lime sludge, the entire volume of waste is considered 
to be a listed waste in accordance with Sec. 261.3(a)(2)(iv) (i.e., the 
mixture rule). The mixture of listed ammonia still lime sludge and 
solid waste contained in HWM-2 is the subject of this petition.
    BSC petitioned the Agency to exclude its waste because it does not 
believe that the waste meets the criteria of the listing. BSC claims 
that the mixture of ammonia still lime sludge and solid waste is not 
hazardous because the constituents of concern, although present in the 
waste, are present in either insignificant concentrations or, if 
present at significant levels, are essentially in immobile forms. BSC 
also believes that this waste is not hazardous for any other reason 
(i.e., there are no additional constituents or factors that 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 
(HSWA) of 1984. See Section 222 of HSWA, 42 USC 6921(f), and 40 CFR 
260.22(d)(2)-(4). Today's proposal to grant this petition for delisting 
is the result of the Agency's evaluation of BSC's petition.

B. Background

    On July 18, 1984, BSC petitioned the Agency to exclude the waste 
contained in its on-site landfill identified as HWM-2, and subsequently 
provided additional information. After evaluating the petition, the 
Agency proposed to deny BSC's petition to exclude the waste contained 
in HWM-2 on April 7, 1989 (see 54 FR 14101). The Agency's evaluation of 
the petition, which used the ``VHS'' fate and transport model and the 
analytical data provided by BSC, indicated that the petitioned waste 
exhibited significant concentrations of leachable lead and 
benzo(a)pyrene. Furthermore, the Agency considered the sampling and 
analysis program conducted in support of the petition to be incomplete. 
Moreover, groundwater monitoring data collected from wells monitoring 
this on-site landfill indicated that the landfill may have been 
adversely impacting groundwater quality at the site. The Agency 
received public comments on the April 7, 1989 proposed decision between 
April and June 1989. On January 29, 1990, the Agency re-opened the 
comment period to enable public review of information supporting the 
proposed delisting health-based level for benzo(a)pyrene (see 55 FR 
2847). The Agency published a final denial, including responses to 
public comments, in the Federal Register on August 26, 1991 (see 56 FR 
41944). On October 30, 1991, BSC petitioned the U.S. Court of Appeals 
for the District of Columbia Circuit to overturn EPA's denial decision. 
Subsequently, BSC agreed to stay this litigation for a re-evaluation by 
EPA using a new fate and transport model (EPACML) and updated health-
based levels, and on November 17, 1992 submitted extensive supplemental 
waste characterization and groundwater monitoring data. After reviewing 
the new data in conjunction with the existing petition information, the 
Agency now believes that the petitioned waste is eligible for an 
exclusion based on the current evaluation criteria. Therefore, the 
Agency hereby proposes to withdraw its final denial decision and to 
grant BSC's petition. The Agency's decision to re-evaluate BSC's 
petition was based on additional waste characterization and groundwater 
data that was collected subsequent to the publication of the final 
denial decision. The Agency's re-evaluation of BSC's petitioned waste 
contained in the HWM-2 landfill is the subject of today's proposal.
    In support of its petition, BSC submitted: (1) detailed 
descriptions and schematics of its manufacturing process; (2) a list of 
all raw materials and Material Safety Data Sheets (MSDS) for all trade 
name materials that might be expected to have contributed to the waste; 
(3) results from total constituent analyses for the eight Toxicity 
Characteristic (TC) metals listed in Sec. 261.24, antimony, nickel, 
thallium, and cyanide; (4) results from the Toxicity Characteristic 
Leaching Procedure (TCLP; SW-846, Method 1311) for the eight TC metals, 
antimony, nickel, and thallium; (5) results from the EP leachate 
procedure for the eight TC 

[[Page 62797]]
metals, nickel, and cyanide; (6) results from total constituent 
analyses for sulfide and reactive sulfide; (7) results from total oil 
and grease analyses; (8) results from characteristics testing for 
ignitability, corrosivity, and reactivity; (9) results from total 
constituent analyses for 70 volatile organic and semivolatile organic 
constituents, including the TC organic constituents (excluding 
pesticides and herbicides); (10) results from the TCLP analyses for 63 
volatile organic and semivolatile organic constituents, including the 
TC organic constituents (excluding pesticides and herbicides); and (11) 
groundwater monitoring data collected from wells monitoring the on-site 
landfill.
    BSC conducted primary metal-making and coke-making operations 
during the period the ammonia still lime sludge was generated. In 
October 1983, BSC discontinued its primary metal-making operations and 
modified its coking processes so that the ammonia still lime sludge was 
no longer generated. (BSC now uses sodium hydroxide as the strong base 
at the ammonia still rather than lime slurry, and therefore ammonia 
still lime sludge is no longer generated.)
    BSC's steel-making process involved refining molten iron with 
oxygen, flux (i.e., dolomite or lime), and alloying materials in a 
basic oxygen furnace to produce carbon steels. BSC's iron-making 
process involved smelting of iron-bearing materials (i.e., iron ore, 
sinter, and scrap) with coke, flux (i.e., dolomite and lime), and 
preheated air in blast furnaces. The blast furnace slurry disposed of 
in BSC's landfill originated from the water scrubbing of blast furnace 
gas. According to BSC, blast furnace sludge has not been produced since 
the final removal of sludge from the thickener in November 1983.
    Coke-making involves the destructive distillation of bituminous 
coal in coke ovens. Volatile matter evolves during the coking process 
(including the moisture content of the coal) and leaves the ovens 
through coke oven gas off-takes. This hot coke oven gas is cooled by 
spraying it with recycled flushing liquor consisting of a weak ammonia 
liquor (WAL) solution. As the coke oven gas is cooled, water and tar 
are condensed. The tar fraction is separated from the aqueous WAL in a 
decanter. The majority of the WAL is recycled back to the coke oven gas 
cooling process as flushing liquor. Any excess WAL is processed by 
solvent extraction to recover phenol or sodium phenolate. The excess 
WAL then is processed by steam stripping to release aqueous ammonia 
into the gas phase in an ammonia still. In the upper portion of the 
still, free ammonia is stripped by steam (at temperatures of about 100 
deg.C) and ammonia vapor rising from the lower portion. In the lower 
portion of the still, fixed ammonia compounds are dissociated by 
adjusting the pH with lime slurry and then injecting steam. The spent 
ammonia still lime slurry is drawn off the bottom and discharged to one 
of two settling basins. The sludge that settles out in these basins 
(i.e., ammonia still lime sludge) is subsequently placed in the on-site 
landfill.
    As stated previously, BSC disposed of its ammonia still lime sludge 
in its on-site HWM-2 landfill with other solid wastes between 1969 and 
November of 1983. BSC is not currently disposing of wastes in this 
landfill. Based on available records, BSC estimates that approximately 
two percent of the waste placed in the landfill is ammonia still lime 
sludge. The most significant wastes that were disposed of in the 
landfill include: blast furnace thickener sludge, basic oxygen furnace 
thickener sludge, sinter plant sludge, sludges generated from the 
treatment of wastewaters from a cold rolling mill, a steel pickling 
operation, and a hot-dip galvanizing line, and dredging spoils (from 
Smokes Creek). Only the ammonia still lime sludge is a listed hazardous 
waste.
    BSC's preliminary sampling demonstration included data on ten 
samples collected from the landfill in January 1984. A detailed 
description of procedures used to collect three of these samples was 
not provided and is not available. For the remaining seven samples, BSC 
divided the landfill into four sections and randomly selected a partial 
core sample (i.e., two-foot core samples were taken as opposed to full-
depth core samples) from each of the four sections, two partial core 
samples from the central portion of the landfill, and an additional 
partial core sample from the southeast section. A grab sample was then 
taken from each of these seven core samples, resulting in seven grab 
samples. The three samples for which sampling procedure descriptions 
were not provided were analyzed for total constituent (i.e., mass of a 
particular constituent per mass of waste) and extraction procedure (EP) 
leachable (i.e., mass of a particular constituent per unit volume of 
extract) concentrations of arsenic, cyanide, naphthalene, and phenolic 
compounds. The extraction procedure used in these analyses, however, 
was not equivalent with the procedure described in SW-846 Method 1310 
and therefore these data were not considered in the evaluation of BSC's 
petition. (For a more detailed description of the extraction procedure 
used by BSC, see the RCRA public docket for today's notice.) The 
remaining seven grab samples were analyzed (using the EP) for leachable 
concentrations of the eight TC metals, nickel, cyanide, and sulfide; 
and the characteristics of corrosivity and reactivity.
    BSC collected a second set of samples during April 1984. To collect 
these samples, BSC divided the landfill into six sections of 
approximately equal size. Within each section, six discrete samples 
were taken at random depths from evenly spaced boring locations. The 
samples then were composited, by section, to form six representative 
samples, one composite per section. These six composite samples were 
analyzed for total constituent concentrations of the eight TC metals, 
nickel, cyanide, benzene, benzo(a)pyrene, naphthalene, phenolic 
compounds, and tetrachloroethylene. In addition, these six composite 
samples were analyzed (using the EP) for leachable concentrations of 
the eight TC metals, nickel, and cyanide; total oil and grease content; 
and the characteristic of ignitability.
    At EPA's request, BSC conducted additional sampling and testing of 
the central portion of the landfill in February of 1985. Specifically, 
BSC collected approximately ten two-foot long core samples from six 
locations within the central portion of the landfill. For each 
location, grab samples were taken from each of the core samples 
(approximately ten) and composited. These six composite samples were 
analyzed for total constituent and leachable concentrations (using the 
EP) of the eight TC metals (excluding mercury, selenium, and silver), 
nickel, and cyanide. In addition, these six composite samples were 
analyzed for total constituent concentrations of sulfide, benzene, 
benzo(k)fluoranthene, benzo(a)pyrene, dibenzo(a,h)anthracene, 
indeno(1,2,3-cd)pyrene, naphthalene, and phenolic compounds; and total 
oil and grease content.
    In its comments to the Agency's April 7, 1989 proposed denial of 
its petition, BSC submitted the analytical results of an additional 
sampling event. In September 1988, four full-depth core samples were 
obtained from the landfill and were composited to form one composite 
sample. This sample was analyzed using the TCLP to quantify leachable 
concentrations of the TC contaminants listed in Sec. 261.24 (excluding 
the pesticides/herbicides) and thirteen other organic constituents.
    In June 1992, following the publication of the final denial notice 
for 

[[Page 62798]]
BSC's petition in the Federal Register (see 56 FR 41944; August 26, 
1991), BSC conducted additional sampling and testing of its petitioned 
waste. BSC established a uniform grid over the landfill dividing the 
landfill into seventeen sections, each 100 feet by 100 feet. Within 
each grid section a second uniform grid of 10-foot intervals was 
established for the selection of the individual boring locations. 
Alternating 10,000 square foot grid sections were selected for 
sampling. BSC used a random number table to select five boring 
locations within each 10,000 square foot grid section. This resulted in 
the selection of eight grid sections to yield eight composite samples 
of the material in the landfill, with each composite representative of 
five full-core sample aliquots from each grid section. These eight 
composite samples were analyzed for total constituent concentrations of 
83 toxicants of potential concern<SUP>1 (including the eight TC 
metals). These eight composite samples were also analyzed for TCLP 
leachate concentrations of the toxicants of potential concern 
(excluding cyanide and polychlorinated biphenyls (PCBs)); and total oil 
and grease.

    \1\BSC chose to analyze waste samples for these constituents 
because they were: (1) identified by EPA during previous actions 
concerning this petition as constituents of regulatory concern, or 
(2) identified as constituents that reasonably may be expected to be 
potentially present in the petitioned waste, based on the processes 
from which the waste components were derived.
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    BSC claims that the analytical data obtained from the four sampling 
events that occurred from April 1984 through June 1992 are 
representative of any variation in the constituent concentrations in 
the petitioned waste. BSC believes that the data from the preliminary 
grab samples obtained in January 1984 are not representative of the 
entire waste volume contained in the landfill. BSC also believes that 
it has addressed the Agency's concern regarding the number of samples 
collected and the target analyses, as originally noted by the Agency in 
the April 7, 1989 proposal to deny BSC's petition. Specifically, in 
that proposal the Agency noted that, based on the dimensions of the 
landfill containing the petitioned waste, BSC should have collected at 
least one sample for every 10,000 square foot section of the landfill. 
BSC's original estimate of the areal extent of the landfill was 5.3 
acres; however, as discussed later in today's notice, BSC has 
demonstrated through detailed calculations (discussed later in today's 
notice) that a better estimate of the landfill area is 3.5 acres. 
Therefore, based on this revised estimate, BSC should have collected at 
least 15 composite samples. Since the April 1989 proposal, BSC has 
conducted additional sampling of the waste, bringing the total number 
of composite samples to 21, including 8 composite samples collected in 
June 1992 that have been analyzed for total constituent concentrations 
of 70 volatile organic and semivolatile organic constituents. The 
Agency believes, based on its re-evaluation of BSC's petition, that the 
combined results of BSC's sampling events are sufficient to 
characterize any variation in the constituent concentrations in the 
petitioned waste.
    BSC also submitted ground-water monitoring information collected 
from wells monitoring the landfill to demonstrate that the petitioned 
waste was not adversely impacting ground-water quality. The ground-
water monitoring information submitted by BSC, and more recent data 
received from State and EPA Regional authorities, included: (1) Well 
location information; (2) boring logs and well construction information 
for each well; (3) water levels and water level contour maps; and (4) 
results of the analysis of ground-water samples.

C. Agency Analysis

    BSC used SW-846 Methods 7060 through 7760 (January 1984, April 
1984, and February 1985 samples) to quantify the total constituent 
concentrations of the eight TC metals and nickel. BSC used SW-846 
Method 6010 (June 1992 samples) to quantify the total constituent 
concentrations of the eight TC metals (with the exception of mercury 
and selenium, for which BSC used SW-846 Methods 7471 and 7740, 
respectively), nickel, antimony, and thallium. ``Methods for Chemical 
Analysis of Water and Wastes'' Method 335.2 (April 1984 samples), SW-
846 Method 9010 (February 1985 samples) and SW-846 Method 9012 (June 
1992 samples) were used to quantify total cyanide concentrations in the 
petitioned waste. SW-846 Method 9030 (February 1985 samples) was used 
to quantify total sulfide levels in the petitioned waste. SW-846 Method 
7.3.4.1 (June 1992 samples) was used to quantify reactive sulfide 
levels in the petitioned waste. SW-846 Method 1310 (samples prior to 
1988) was used to determine the leachable concentrations of the eight 
TC metals, nickel, and cyanide. BSC prepared a toxicity characteristic 
leachate (according to the procedure in 51 FR 21685, June 13, 1986) to 
determine the leachable concentrations of the eight TC metals in the 
September 1988 sample. SW-846 Method 1311 was used to determine the 
leachable concentrations of the eight TC metals, nickel, antimony, and 
thallium in the June 1992 samples. Table 1 presents the maximum 
reported, and 95% Upper Confidence Limit (UCL) total constituent 
concentrations of the eight TC metals listed in Sec. 261.24, nickel, 
antimony, thallium, cyanide, and sulfide. Table 1 also identifies the 
number of samples in which each constituent was detected. Table 2 
presents the maximum reported, and 95% UCL EP leachate and TCLP 
leachate concentrations of the eight TC metals listed in Sec. 261.24, 
nickel, antimony, thallium, and cyanide. (Analysis for leachable 
concentrations of sulfide or reactive sulfide is not necessary because 
the Agency's level of regulatory concern is based on the total 
constituent concentration of reactive sulfide.)

      Table 1.--Total Constituent Concentrations (mg/kg) Inorganic      
                              Constituents                              
------------------------------------------------------------------------
                                 Total Concentrations (mg/    Number of 
                                            kg)               Samples in
                               -----------------------------    which   
         Constituents                                         detected/ 
                                                                total   
                                 Maximum\1\     95% UCL\2\    number of 
                                                               samples  
------------------------------------------------------------------------
Antimony......................       <12            <12              0/8
Arsenic.......................        16.2           10.3          12/23
Barium........................     1,660            791            13/20
Cadmium.......................         3.3            2.1          12/20
Chromium......................       172            100            20/20
Lead..........................     7,520          2,810           20/20 

[[Page 62799]]
                                                                        
Mercury.......................         0.268          0.16          6/14
Nickel........................        64.6           30.6          12/20
Selenium......................         2.6            2.2           6/14
Silver........................         3.0            2.1           8/14
Thallium......................        43             32.6            5/8
Cyanide (total)...............        43.1           36.0          20/23
Reactive Sulfide..............       140            130.0           7/8 
------------------------------------------------------------------------
< Denotes that the constituent was not detected at the detection limit  
  specified in the table.                                               
\1\ These levels represent the highest detected concentrations of each  
  inorganic constituent found in any sample of the petitioned waste,    
  and, if not detected, the highest detection limit. These levels do not
  necessarily represent the specific levels found in one sample.        
\2\ 95% Upper Confidence Limit (UCL) is the estimated upper 95 percent  
  confidence interval for the average of sample concentrations based on 
  the Student-t distribution applied to random samples. The average was 
  calculated by considering nondetectable measurements to be            
  measurements at the detection limits, except for arsenic, for which   
  high detection limits (<100 mg/kg) for eight samples were not         
  included.                                                             



                     Table 2.--EP/TCLP Leachate Concentrations (mg/l) Inorganic Constituents                    
----------------------------------------------------------------------------------------------------------------
                                                                  EP/TCLP Leachate Concentrations (mg/l)        
                                                         -------------------------------------------------------
                      Constituents                                Maximum\1\                  95% UCL\2\        
                                                         -------------------------------------------------------
                                                               EP           TCLP           EP           TCLP    
----------------------------------------------------------------------------------------------------------------
Antimony................................................       NA             <0.06        NA             <0.06 
Arsenic.................................................        0.034         <0.3          0.016          0.16 
Barium..................................................        1.48           0.7          0.85           0.54 
Cadmium.................................................        0.015         <0.005        0.005         <0.005
Chromium................................................        0.144          0.023        0.034          0.024
Lead....................................................        1.61           0.11         0.37           0.059
Mercury.................................................        0.0007        <0.005        0.0004        <0.002
Nickel..................................................        0.59           0.21         0.28           0.15 
Selenium................................................        0.008         <0.3          0.003         <0.15 
Silver..................................................       <0.001         <0.01        <0.001         <0.01 
Thallium................................................       NA          \3\<0.3         NA             <0.17 
Cyanide (total).........................................        0.06        \4\2.1          0.03         NA     
----------------------------------------------------------------------------------------------------------------
<Denotes that the constituent was not detected at the detection limit specified in the table.                   
NA: Not analyzed.                                                                                               
\1\ These levels represent the highest detected concentrations of the inorganic constituents found in any       
  extract of samples of the petitioned waste, and, if not detected, the highest detection limit. These levels do
  not necessarily represent the specific levels found in one sample.                                            
\2\ 95% Upper Confidence Limit (UCL) is the estimated upper 95 percent confidence interval for the average of   
  sample concentrations based on the Student-t distribution applied to random samples. The average was          
  calculated by considering non-detectable measurements to be measurements at the detection limits.             
\3\ Three samples (including a duplicate) analyzed for thallium had a detection limit of 0.3 mg/l. Seven        
  additional samples (including a duplicate) analyzed for thallium had a detection limit of 0.01 mg/l.          
\4\ Calculated from the maximum detected total cyanide concentration of 43.1 mg/kg by assuming a dilution factor
  of twenty (based on 100 grams of sample and dilution with 2 liters of water) and a theoretical worst-case     
  leaching of 100 percent.                                                                                      

    BSC also performed the Synthetic Precipitation Leaching Procedure 
(SPLP; SW-846 Method 1312) on samples from June 1992 to further examine 
leachable lead levels. The SPLP is similar to the TCLP, except that the 
extraction fluid is a solution of dilute mineral acid (pH 4.2), rather 
than the concentrated solution of acetic acid used in the TCLP. EPA has 
used the SPLP to simulate the effect of acidic rainfall on the mobility 
of waste constituents (e.g., see 54 FR 15316; April 17, 1989). BSC 
claims that the SPLP is more representative of realistic leaching 
conditions at the current site of the waste in the on-site landfill. 
Lead was not detected (<0.003 mg/l) in any of the ten composite samples 
(8 samples and 2 replicates) from the June 1992 sampling event using 
the SPLP procedure.
    The detection limits in Tables 1 and 2 (and Tables 3 and 4 that 
follow) represent the lowest concentrations quantifiable by BSC when 
using the appropriate analytical methods to analyze the petitioned 
waste.
    Using ``Standard Methods for the Examination of Water and 
Wastewater (14th edition)'' Method 502.D (April 1984 samples) and SW-
846 Method 9071 (February 1985 and June 1992 samples), BSC determined 
that the maximum oil and grease content of the petitioned waste was 
0.93 percent; therefore, the EP and the TCLP analyses did not have to 
be modified in accordance with the Oily Waste Extraction Procedure 
(i.e., wastes having more than one percent total oil and grease may 
either have significant concentrations of constituents of concern in 
the oil phase, which may not be assessed using the standard EP or TCLP 
leachate procedure, or the concentration of oil and grease may be 
sufficient to coat the solid phase of the sample and interfere with the 
leaching of metals from the sample). See SW-846 Method 1330 for the 
Oily Waste Extraction Procedure. On the basis of test results provided 
by BSC, pursuant to Sec. 260.22, none of the samples analyzed exhibited 
the characteristics of 

[[Page 62800]]
ignitability, corrosivity, or reactivity. See Sec. 261.21, Sec. 261.22, 
and Sec. 261.23, respectively.
    BSC used unreferenced gas chromatographic/mass spectrometric (GC/
MS) methods (April 1984 samples) to quantify total constituent 
concentrations of benzene, benzo(a)pyrene, and tetrachloroethylene. 
``Methods for Chemical Analysis of Water and Waste,'' Method 420.1 
(April 1984 samples) was used to quantify phenol levels. SW-846 Method 
8.86 (April 1984 samples) was used to quantify naphthalene 
concentrations. BSC used unreferenced SW-846 Methods (February 1985 
samples) to quantify the total constituent concentrations of benzene, 
benzo(a)pyrene, benzo(k)fluoranthene, dibenzo(a,h)anthracene, 
indeno(1,2,3-cd)-pyrene, naphthalene, and phenols. BSC used SW-846 
Methods 8240 and 8270 (June 1992 samples) to quantify total constituent 
concentrations of volatile organic and semivolatile organic compounds, 
respectively. BSC prepared a toxicity characteristic leachate 
(according to the procedure in 51 FR 21685, June 13, 1986) to determine 
the leachable concentrations of volatile organic and semivolatile 
organic compounds in the September 1988 sample. BSC used SW-846 Method 
1311 in conjunction with Methods 8240 and 8270 to determine the 
leachable concentrations of volatile organic and semivolatile organic 
compounds in the June 1992 samples.
    Table 3 presents the maximum reported (or estimated) total 
constituent concentrations for hazardous organic constituents detected 
in the petitioned waste. Table 4 presents the maximum reported and 
estimated TCLP leachate concentrations for hazardous organic 
constituents detected in extracts of samples of the petitioned waste. 
Average values (and 95% UCLs) were not calculated because the number of 
samples for most organic constituents were limited, and most yielded 
nondetectable constituent levels at varying detection limits. 
Furthermore, most constituents that were detected were found at levels 
below quantitation limits and are reported as ``estimated'' values. 
Tables 3 and 4 also identify the number of samples in which each 
constituent was detected. The total constituent concentrations of 
benzo(a)pyrene, naphthalene, and phenol in the six composite samples 
collected in April 1984 were presented in the petition on a dry weight 
basis. Because, for delisting purposes, the Agency evaluates wastes in 
their as-disposed condition, the concentrations of these three 
constituents were recalculated in Table 3 on a wet weight basis using 
percent solids data to account for the water that is normally present 
in the waste. (For further detail, see the RCRA public docket for 
today's notice.)

                Table 3.--Total Constituent Concentrations (mg/kg) Detected Organic Constituents                
----------------------------------------------------------------------------------------------------------------
                                                                                   Total Concentrations (mg/kg) 
                                                                                --------------------------------
                                                                                                     Number of  
                                  Constituents                                                      samples in  
                                                                                    Maximum\1\    which detected/
                                                                                                   total number 
                                                                                                    of samples  
----------------------------------------------------------------------------------------------------------------
Benzo(a)-anthracene............................................................        \2\0.44               2/8
Benzo(a)pyrene\3\..............................................................           0.69              6/20
Chrysene.......................................................................        \2\0.6                2/8
1,1-Dichloroethane.............................................................        \2\0.0075             1/8
Ethyl benzene..................................................................           1.3                2/8
Fluoranthene...................................................................        \2\1.3                3/8
Indeno(1,2,3-cd)-pyrene........................................................        \2\0.53              1/14
Methyl ethyl ketone............................................................        \2\0.085              3/8
Naphthalene\3\.................................................................        \2\0.87             15/23
Phenanthrene...................................................................        \2\2.0                5/8
Phenol\3\......................................................................           0.26             12/20
Pyrene.........................................................................        \2\1.5                5/8
Toluene........................................................................        \2\0.0065             2/8
Xylenes........................................................................           5                 5/8 
----------------------------------------------------------------------------------------------------------------
\1\These levels represent the highest concentration of each organic constituent found in any sample of the      
  petitioned waste. These levels do not necessarily represent the specific levels found in one sample.          
\2\These constituents were detected, but below quantitation limits; estimated values are given.                 
\3\BSC's petition reported benzo(a)pyrene, naphthalene, and phenol concentrations for samples collected in April
  1984 on a dry weight basis. Tabulated values are on a wet weight basis.                                       


     Table 4.--TCLP Leachate Concentrations (mg/l) Detected Organic     
                              Constituents                              
------------------------------------------------------------------------
                                                           TCLP Leachate
                                                          Concentrations
                      Constituents                            (mg/l)    
                                                            Maximum\1\  
------------------------------------------------------------------------
Ethyl benzene...........................................          0.036 
Methylene chloride\2\...................................           .085 
Naphthalene.............................................        \3\.013 
Phenol..................................................        \3\.028 
Toluene.................................................           .011 
1,1,1-Trichloroethane...................................           .006 
Xylenes.................................................       \3\.085  
------------------------------------------------------------------------
\1\These levels represent the highest concentration of each organic     
  constituent found in any extract of samples of the petitioned waste.  
  These levels do not necessarily represent the specific levels found in
  one sample.                                                           
\2\Found in blanks for some samples.                                    
\3\Concentrations estimated at less than the detection limit were       
  reported and are included as maximum concentrations.                  

    In its original petition, BSC submitted a signed certification 
stating that the landfill contained approximately 170,000 cubic yards 
of waste that had been accumulated for 14 years (1969 through November 
1983). In the November 1992 supplemental information submittal, BSC 
claimed that this previous estimate of the volume of the landfill was 
not accurate. BSC stated that the initial estimate was based upon 

[[Page 62801]]
an area of 5.3 acres and an average depth of 20 feet. BSC's 
recalculation of the volume of the landfill is based upon an area of 
153,240 square feet (approximately 3.5 acres) and an average depth of 
21.7 feet. In addition, BSC's recalculation takes into account the side 
slope of the landfill, assuming a conservative side slope of 1:1 
(vertical to horizontal). BSC submitted a surveyor's report of the area 
to support its revised estimate of waste volume. BSC stated that the 
original surface area estimate was based on the outside edge of the 
roads surrounding the landfill (approximately 5 acres) rather than on 
the edge of the waste surface outline (approximately 3.5 acres). BSC 
stated that the best estimate of the volume of waste contained in the 
landfill is approximately 110,000 cubic yards. The Agency reviews a 
petitioner's estimates and, on occasion, has requested a petitioner to 
re-evaluate estimated waste volume. EPA accepts BSC's modified estimate 
of 110,000 cubic yards.
    EPA does not generally verify submitted test data before proposing 
delisting decisions. The sworn affidavit submitted with this petition 
binds the petitioner to present truthful and accurate results. The 
Agency, however, has maintained a spot-check sampling and analysis 
program to verify the representative nature of data for some percentage 
of the submitted petitions. A spot-check visit to a selected facility 
may be initiated before finalizing a delisting petition or after 
granting an exclusion.

D. Agency Evaluation

    The Agency considered the appropriateness of alternative waste 
management scenarios for BSC's mixture of ammonia still lime sludge and 
solid wastes and decided, based on the information provided in the 
petition, that disposal in a Subtitle D landfill is the most 
reasonable, worst-case scenario for this waste. Under a landfill 
disposal scenario, the major exposure route of concern for any 
hazardous constituents would be ingestion of contaminated groundwater. 
The Agency, therefore, evaluated BSC's petitioned waste using the EPA's 
Composite Model for Landfills (EPACML), as modified for delisting 
evaluations, which predicts the potential for groundwater contamination 
from wastes that are landfilled. The EPACML model is more sophisticated 
than the VHS model used previously by the Agency for evaluating BSC's 
petitioned waste. See 56 FR 32993 (July 18, 1991), 56 FR 67197 
(December 30, 1991), and the RCRA public docket for these notices for a 
detailed description of the EPACML model, the disposal assumptions, the 
modifications made for delisting, and the benefits of replacing the VHS 
model with the EPACML model for delisting. This model, which includes 
both unsaturated and saturated zone transport modules, was used to 
predict reasonable worst-case contaminant levels in groundwater at a 
compliance point (i.e., a receptor well serving as a drinking-water 
supply). Specifically, the model estimated the dilution/attenuation 
factor resulting from subsurface processes such as three-dimensional 
dispersion and dilution from groundwater recharge for a specific volume 
of waste.
    The Agency requests public comments on its use of the EPACML model 
as applied to the evaluation of BSC's waste. EPA will consider all 
comments on the validity of the EPACML model and its appropriateness 
for use here to evaluate the potential for groundwater contamination if 
BSC's petitioned wastes are disposed of in any Subtitle D landfill.
    For the evaluation of BSC's petitioned waste, the Agency used the 
EPACML to evaluate the mobility of hazardous inorganic constituents 
detected in the extract of samples of BSC's petitioned waste. The 
Agency's evaluation, using BSC's estimated waste volume of 110,000 
cubic yards and the maximum and 95% UCL leachate concentrations (see 
Table 2), generated the compliance-point concentrations for the 
constituents of concern as shown in Table 5. (See docket for this rule 
for details in the use of the EPACML in evaluating BSC's waste).
    The Agency did not evaluate the mobility of antimony, silver and 
thallium from BSC's petitioned waste because they were not detected in 
the leachate extracts using the appropriate SW-846 analytical test 
methods and adequate detection limits (see Table 2). The Agency 
believes that it is inappropriate to evaluate non-detectable 
concentrations of a constituent of concern in its modeling efforts for 
RCRA delistings if the non-detectable value was obtained using the 
appropriate analytical method. If a constituent cannot be detected 
(when using the appropriate analytical method with an adequate 
detection limit), the Agency believes it is reasonable to assume that 
the constituent is not present and therefore does not present a threat 
to either human health or the environment.

               Table 5.--EPACML: Calculated Compliance-Point Concentrations (mg/l) Landfill Waste               
----------------------------------------------------------------------------------------------------------------
                                                                     Compliance-Point Concen.        Levels of  
                          Constituents                           --------------------------------   regulatory  
                                                                    Maximum\1\      95% UCL\2\      concern\3\  
----------------------------------------------------------------------------------------------------------------
Arsenic.........................................................        0.00071        0.0033              0.05 
Barium..........................................................         .031           .018               2.0  
Cadmium.........................................................         .00031         .00010              .005
Chromium........................................................         .0030          .00071              .1  
Lead............................................................         .034           .0077               .015
Mercury.........................................................         .000015        .0000083            .002
Nickel..........................................................         .012           .0058               .1  
Selenium........................................................         .00017         .000063             .05 
Cyanide.........................................................         .044           .00063              .2  
----------------------------------------------------------------------------------------------------------------
\1\Using the maximum EP or TCLP leachate level from Table 2, whichever is greater, and based on a DAF of 48     
  calculated using the EPACML for one time volume of 110,000 cubic yards                                        
\2\Using the 95% UCL level from EP or TCLP data, from Table 2, whichever is greater, and based on a DAF of 48   
  calculated using the EPACML for one-time volume of 110,000 cubic yards.                                       
\3\See ``Docket Report on Health-based Levels and Solubilities Used in the Evaluation of Delisting Petitions,   
  Submitted Under 40 CFR Sec. 260.20 and Sec. 260.22'', December 1994, located in the RCRA public docket.       

    The petitioned waste exhibited maximum and 95% UCL arsenic, barium, 
cadmium, chromium, mercury, nickel, selenium, and cyanide levels at the 
compliance point below the health-based levels used in delisting 
decision-

[[Page 62802]]
making. The Agency's evaluation of the extract data indicated that two 
grab samples of the petitioned waste contained leachable concentrations 
of lead at the compliance point above the health-based level of 0.015 
mg/l used in delisting decision-making. These two grab samples were 
collected in January 1984 during a preliminary sampling effort. 
However, since this sampling event, BSC has provided analytical results 
quantifying leachable lead concentrations in 21 additional composite 
samples, including nine samples that were analyzed using the TCLP. 
Table 6 presents a summary of all the leachable lead data for BSC's 
petitioned waste.

                    Table 6.--Summary of Leachable Lead Concentrations (mg/l) Landfill Waste                    
----------------------------------------------------------------------------------------------------------------
                                                              Leachable lead                                    
                       Sampling date                          concentration            Extraction method        
----------------------------------------------------------------------------------------------------------------
January 1984 (grab samples)................................            0.426  EP                                
                                                                       0.08   EP                                
                                                                       0.97   EP                                
                                                                       0.474  EP                                
                                                                       0.052  EP                                
                                                                       0.045  EP                                
                                                                       1.61   EP                                
April 1984 (composite samples).............................           <0.01   EP                                
                                                                      <0.01   EP                                
                                                                      <0.01   EP                                
                                                                      <0.01   EP                                
                                                                      <0.01   EP                                
                                                                       0.04   EP                                
February 1985 (composite samples)..........................           <0.01   EP                                
                                                                       0.013  EP                                
                                                                      <0.01   EP                                
                                                                      <0.01   EP                                
                                                                      <0.01   EP                                
                                                                       0.041  EP                                
September 1988 (composite samples).........................            0.05   TCLP                              
June 1992 (composite samples)..............................            0.004  TCLP                              
                                                                       0.048  TCLP                              
                                                                    \1\0.074  TCLP                              
                                                                      <0.003  TCLP                              
                                                                       0.003  TCLP                              
                                                                       0.004  TCLP                              
                                                                    \1\0.021  TCLP                              
                                                                       0.110  TCLP                              
----------------------------------------------------------------------------------------------------------------
<Denotes that the constituent was not detected at the detection limit specified in the table.                   
\1\Concentration is average of duplicate samples.                                                               

    For a number of reasons, the Agency believes that BSC's June 1992 
sampling and analysis program provides a compelling demonstration that 
the higher leachable lead concentrations observed in the January 1984 
sampling event do not truly represent the leachable lead concentrations 
in the petitioned waste. First, BSC used a different protocol to sample 
the petitioned waste in January 1984. Samples collected during January 
1984 were simply partial core samples taken from sections of the 
landfill; whereas, samples collected during the later sampling events, 
particularly the June 1992 event, were collected and composited 
according to guidance typically given to petitioners. In the early 
stages of its review of BSC's petition, EPA raised questions concerning 
the differences between leachable lead data from samples collected in 
January 1984 and samples collected in April 1984. BSC conducted its 
February 1985 sampling program in response to the Agency's request to 
collect additional, full-core composite samples of the central portion 
of the landfill in order to provide more information about leachable 
lead concentrations in the petitioned waste. Leachable lead data from 
BSC's February 1985 composite sampling program, and subsequent 
composite sampling programs in September 1988 and June 1992, expanded 
the data set to a total of 28 data values, 21 of which correspond to 
composite samples. As shown in Table 6, the maximum leachable lead 
concentration for the subset of preliminary grab samples (1.61 mg/l) is 
significantly greater than the maximum leachable lead concentration for 
the subset of composite samples (0.11 mg/l). The Agency notes that even 
the average leachable lead concentration of the subset of preliminary 
grab samples (calculated to be 0.52 mg/l) is significantly greater than 
the maximum leachable lead concentration of the subset of composite 
samples (i.e., 0.11 mg/l). Therefore, the Agency believes the 
preliminary grab samples may not be truly representative of the 
leachable lead concentrations in the petitioned waste.
    Second, samples of BSC's petitioned waste collected in the two 
later sampling events (September 1988 and June 1992) were subjected to 
the TCLP, rather than the EP. As of September 25, 1990 the Agency 
adopted the TCLP as a replacement for and improvement upon the EP in 
its hazardous waste regulatory program. Thus, the Agency now requires 
that petitioners provide TCLP data rather than EP data in support of 
their petitions. The Agency believes that the maximum leachable lead 
concentration for the subset of samples analyzed using the TCLP 
(reported to be 0.11 mg/l) will be more representative of the potential 
mobility of lead from BSC's petitioned waste than the earlier EP 
results. When the maximum TCLP level for lead (0.11 mg/l) is input to 
the EPACML, this yields a compliance point concentration (0.0022 mg/l) 
well below the level of concern (0.015 mg/l). Therefore, the TCLP data 
clearly indicates that 

[[Page 62803]]
leachable lead levels are not a concern in BSC's waste.
    Finally, the Agency calculated the average of the leachable lead 
data in Table 6 for the EP and TCLP data sets, disregarding whether the 
samples were collected using grab or compositing methods. The 95% UCL 
values (as shown in Table 2) are 0.37 mg/l for the EP data, and 0.059 
mg/l for the TCLP data. When input into the EPACML, these values would 
yield compliance point concentrations of 0.0077 mg/l and 0.0012 mg/l, 
respectively, for the EP and TCLP data. Averaging all the EP and TCLP 
data yields a 95% UCL of 0.26 mg.l, which would lead to a compliance 
point concentration of 0.0054 mg/l. Thus, no matter how the data are 
averaged, the 95% UCL well compliance point would still be below the 
level of concern (0.015 mg/l). Therefore, for these reasons, the Agency 
believes that leachable lead concentrations in the petitioned waste 
would not cause this waste to be considered a hazardous waste for 
Subtitle C purposes and are not of concern.
    As reported in Table 1, the maximum concentration of total cyanide 
in the petitioned waste is 43.1 mg/kg. Because reactive cyanide is a 
specific subcategory of the general class of cyanide compounds, the 
maximum level of reactive cyanide will not exceed 43.1 mg/kg. Thus, the 
Agency concludes that the concentration of reactive cyanide will be 
below the Agency's interim standard of 250 mg/kg. See ``Interim Agency 
Thresholds for Toxic Gas Generation'', July 12, 1985, internal Agency 
Memorandum in the RCRA public docket. Furthermore, the maximum reported 
level of reactive sulfide in BSC's waste is 140 mg/kg. This 
concentration is below the Agency's interim standard of 500 mg/kg. See 
the ``Interim Agency Thresholds for Toxic Gas Generation'' document 
cited above. Therefore, reactive cyanide and sulfide levels in BSC's 
petitioned waste would not cause this waste to be considered a 
hazardous waste for Subtitle C purposes and are not of concern.
    The Agency also evaluated the mobility of the hazardous organic 
constituents detected in the extract of samples of BSC's petitioned 
waste using the EPACML. The Agency used the maximum reported leachate 
concentrations (see Table 4) and BSC's estimate of 110,000 cubic yards 
of accumulated waste as inputs in the EPACML in order to assess the 
potential impacts of these constituents upon the groundwater. The 
calculated compliance-point concentrations for the seven organic 
constituents detected in sample extracts are presented in Table 7.

   Table 7.--EPACML: Calculated Compliance-Point Concentrations (mg/l)  
                             Landfill Waste                             
------------------------------------------------------------------------
                                                 Maximum                
                                               compliance-     Levels of
                Constituents                      point       regulatory
                                             constituents\1\  concern\2\
------------------------------------------------------------------------
Ethyl benzene..............................       0.00075          0.7  
Methylene chloride.........................       0.0018           0.005
Naphthalene................................       0.00027          1.0  
Phenol.....................................       0.00058         20.0  
Toluene....................................       0.00023          1    
1,1,1-Trichloroethane......................       0.00013          0.2  
Xylene.....................................       0.0018         10     
------------------------------------------------------------------------
\1\Based on an estimated waste volume of 110,000 cubic yards in the     
  landfill, the EPACML model calculated a dilution/attenuation factor of
  48.                                                                   
\2\See ``Docket Report on Health-based Levels and Solubilities Used in  
  the Evaluation of Delisting Petitions, Submitted Under 40 CFR Sec.    
  260.20 and Sec. 260.22'', December 1994, located in the RCRA public   
  docket.                                                               

    The Agency believes that two of the seven constituents may not 
truly be present in the TCLP extract of BSC's waste. Methylene chloride 
is a common laboratory contaminant that also was observed in blanks for 
some of the samples. Furthermore, methylene chloride was not detected 
in any of the samples analyzed for total constituent levels. Similarly, 
1,1,1 trichloroethane was not found in the total constituent analysis, 
and was detected only once out of eight samples in the TCLP analysis at 
a level (0.006 mg/l) close to the detection limit (0.005 mg/l). 
However, the Agency evaluated the reported maximum concentration for 
these two constituents to examine their potential risk. For all 
organics detected, the compliance point concentration (using maximum 
TCLP data in Table 7) are below the Agency's health-based level of 
concern.
    The Agency did not evaluate the mobility of the remaining hazardous 
organic constituents from BSC's petitioned waste because they were not 
detected in the TCLP extracts using the appropriate SW-846 analytical 
test methods (see Table 4). As stated previously, for RCRA delistings, 
the Agency does not evaluate non-detectable concentrations of a 
constituent of concern in its modeling efforts if the non-detectable 
value was obtained using the appropriate analytical method.
    The Agency concluded after reviewing BSC's processes that no other 
hazardous constituents, other than those tested for, are likely to be 
present in BSC's petitioned waste. The Agency notes that, in its April 
1989 proposal to deny BSC's petition, it concluded that BSC had failed 
to provide sufficient justification that the waste does not contain 
additional hazardous constituents. In particular, BSC had attempted to 
demonstrate, using an approach that relied on analyzing waste samples 
for a limited set of ``indicator'' parameters, that hazardous 
constituents were not present in the waste at levels of concern. The 
Agency believed that this original demonstration was inadequate for a 
number of reasons (see 54 FR 14101, April 7, 1989). As described 
previously in today's notice, BSC conducted additional sampling of the 
waste in June 1992, specifically analyzing samples for total 
constituent concentrations of 70 volatile organic and semivolatile 
organic constituents. Based on a re-evaluation of BSC's petition, 
including the new analytical results from the June 1992 sampling event, 
the Agency believes that no other hazardous constituents are likely to 
be present in BSC's petitioned waste. In addition, on the basis of test 
results and information provided by BSC, pursuant to Sec. 260.22, the 
Agency concludes that the petitioned waste does not exhibit any of the 
characteristics of ignitability, corrosivity, or reactivity. See 
Sec. 261.21, Sec. 261.22, and Sec. 261.23, respectively.
    The Agency also re-evaluated groundwater monitoring data available 
for BSC's landfill, including data for groundwater samples collected 
from March 1985 through July 1992. The concentrations of all 
constituents monitored in the groundwater were detected in downgradient 
wells at concentrations below delisting health-based levels, except for 
lead, benzene, bis(2-ethylhexyl)phthalate, 1,1-dichloroethane, and 
2,4,6-trichlorophenol. During this monitoring period, these 
constituents were detected at concentrations above delisting health-
based levels in at least one upgradient well.
    In its re-evaluation of the groundwater monitoring data, the Agency 
conducted statistical analyses for lead, bis(2-ethylhexyl)phthalate, 
2,4,6-trichlorophenol, and 1,1-dichloroethane to determine if 
downgradient well concentrations statistically exceeded background well 
concentrations (see the docket for today's proposed rule). Based on the 
results of these analyses, the Agency concluded for the delisting 
evaluation that the downgradient concentrations of lead, bis(2-
ethylhexyl)phthalate, 1,1-dichloroethane, and 2,4,6-trichlorophenol are 
not significantly greater than background well concentrations. For this 
reason, the 

[[Page 62804]]
Agency believes that the petitioned waste is unlikely to be the source 
of the detected groundwater contamination.
    The Agency also considered the significance of hexachlorobenzene, 
which was detected in the groundwater at one downgradient well during 
one round of sampling. This hexachlorobenzene concentration was 
reported as an estimated value (rather than an actual detected value) 
of 0.012 mg/l, based on a detection limit of 0.050 mg/l. However, 
hexachlorobenzene has not been reported as detected in any wells 
monitoring the HWM-2 landfill during any other round of analysis 
throughout the monitoring history of the area. Furthermore, this 
constituent was not detected in the petitioned waste, based on total 
constituent analyses of eight samples and TCLP leachate analyses of 
nine samples. The Agency, therefore, believes that hexachlorobenzene is 
not present at levels of concern for delisting.
    The Agency evaluated BSC's demonstration that benzene detected in 
the downgradient wells actually originated from a source other than the 
petitioned waste. BSC's demonstration included an evaluation of each 
waste type placed in the HWM-2 landfill. BSC presented information to 
show that, based on the nature of the processes from which the 
components of the petitioned waste were generated (i.e., ammonia still 
lime sludge, blast furnace thickener sludge, basic oxygen furnace 
thickener sludge, sinter plant sludge, cold rolling mill wastewater 
treatment sludge, and dredging spoils from Smokes Creek), benzene is 
not expected to be present in the petitioned waste at levels of 
concern. Specifically, BSC provided information concerning benzene 
concentrations in each of the individual waste components placed in the 
landfill. This information included: (1) Descriptions of the processes 
generating the blast furnace sludge, basic oxygen furnace sludge, and 
ammonia still lime sludge, (2) results from the analysis of extracts of 
samples of each of the individual waste components, and (3) results 
from the analysis of raw wastewaters from which these waste components 
originated. (A summary of the analytical results quantifying the 
concentrations of benzene in the individual waste components of the 
landfill is contained in the docket).
    The information provided by BSC supports its claim that benzene is 
not expected to be present in the petitioned waste at levels of 
concern. In addition, the Agency notes that benzene has not been 
detected in total constituent analyses of 20 samples of the petitioned 
waste, nor in leaching analyses of nine samples of the petitioned 
waste. Finally, three solid waste management units (designated as acid 
tar pits), which have received a large quantity of waste materials 
known to contain high concentrations of benzene (up to 29,000 mg/kg), 
are located approximately 1,600 feet upgradient of the downgradient 
wells monitoring the landfill containing the petitioned waste. In 
addition to a detailed characterization study of these tar pits, BSC 
provided calculations of the average groundwater velocity to 
demonstrate that contaminants released from these tar pits could have 
reached monitoring wells in the HWM-2 landfill area. For these reasons, 
the Agency believes that BSC's assertion regarding a potential 
upgradient source of benzene, other than the petitioned waste, is 
valid.
    As mentioned earlier in this notice, the Agency also received more 
recent groundwater monitoring data from State and EPA Regional 
authorities. Such additional data were received in late 1993 and 1994, 
after the Agency had performed its statistical analyses of the data 
collected from March 1985 through July 1992 (as submitted by BSC in its 
petition and supplemental information). The Agency concluded that it is 
not necessary to perform further statistical analyses to incorporate 
the more recent data. The earlier data (March 1985 to July 1992) were 
sufficient for the Agency to conduct statistical analyses, and to 
conclude that the contaminants of concern were not released from the 
landfill containing the petitioned waste (i.e., the existing 
groundwater contamination at the site is not attributable to the 
petitioned waste). In addition, based on the Agency's preliminary 
review of the more recent data, it appears that those data would not 
lead to any significant change in estimated constituent concentrations 
that would affect the earlier evaluation. The Agency, therefore, 
believes there is no need to devote additional Agency time and 
resources, which are scarce, to conducting further statistical analyses 
to include the additional groundwater monitoring data. The Agency has 
placed the groundwater monitoring data received from State and EPA 
Regional authorities in the RCRA public docket for today's notice for 
public comment.
    During its evaluation of BSC's petition, the Agency also considered 
the potential impact of the petitioned waste via nongroundwater routes. 
With regard to airborne dispersal of waste, the Agency evaluated the 
potential hazards resulting from airborne exposure to waste 
contaminants from the petitioned waste using an air dispersion model 
for releases from a landfill. The results of this evaluation indicated 
that there is no substantial present or potential hazard to human 
health from airborne exposure to constituents from BSC's petitioned 
waste. (A description of the Agency's assessment of the potential 
impact of airborne dispersal of BSC's waste is presented in the RCRA 
public docket for today's final rule.)
    The Agency also considered the potential impact of the petitioned 
waste via a surface water route. The Agency believes that contaminant 
structures at municipal solid waste landfills can effectively control 
surface water runoff, as the recently promulgated Subtitle D 
regulations (see 56 FR 50978, October 9, 1991) prohibit pollutant 
discharges into surface waters. Furthermore, if the waste were to 
remain on-site, the HWM-2 landfill containing the petitioned waste is 
currently surrounded by a continuous berm that precludes runoff from 
the unit. Therefore, any significant future releases of contaminants 
from the petitioned waste at its current location via a surface water 
route are highly unlikely. If such surface water releases should occur, 
any releases and the HWM-2 unit are subject to the corrective action 
provisions of RCRA. In fact, if BSC's waste in the HWM-2 unit were 
delisted, the unit would remain a solid waste management unit under 
RCRA, and would be closed in accordance with an approved New York State 
plan.
    While some contamination of surface water is possible through 
runoff from a waste disposal area (i.e., storm water), the Agency 
believes that the dissolved concentrations of any hazardous 
constituents in the runoff will tend to be lower than the extraction 
procedure test results reported in today's notice because of the 
aggressive acidic medium used for extraction in the TCLP. The Agency 
also believes that, in general, leachate derived from the waste will 
not directly enter a surface water body without first traveling through 
the saturated subsurface where dilution of hazardous constituents may 
occur.
    In addition, any transported contaminants would be further diluted 
in the receiving water body. Significant releases to surface water due 
to erosion of undissolved particulates in runoff are also unlikely, due 
to the controls noted above. Nevertheless, the Agency evaluated the 
potential hazards resulting from releases from a landfill to a nearby 
stream, as well as possible releases from the current landfill located 
on-site and adjacent to Lake Erie. The results of these evaluations 
indicate that BSC's waste would not present a threat to human health or 
the environment. 

[[Page 62805]]
(See the docket to today's rule for a description of this analysis).

E. Conclusion

    The Agency believes that BSC has demonstrated that the waste 
contained in its on-site landfill is not hazardous for Subtitle C 
purposes. The Agency believes that the sampling procedures used by BSC 
were adequate, and that the samples collected from the landfill are 
representative of the waste contained in the landfill.
    The Agency, therefore, is proposing to withdraw its original denial 
of BSC's petition, and is proposing that BSC's petitioned waste be 
delisted as non-hazardous and thus not subject to regulation under RCRA 
Subtitle C. The Agency proposes to grant an exclusion to Bethlehem 
Steel Corporation's Lackawanna, New York, facility for its mixture of 
ammonia still lime sludge and solid waste described in its petition as 
EPA Hazardous Waste No. K060 and contained in its on-site HWM-2 
landfill. The Agency's decision to exclude this waste is based on 
process descriptions, results from the analysis of samples of the 
petitioned waste, and results from the analysis of groundwater 
monitoring data available for BSC's landfill. If the proposed rule 
becomes effective, the waste contained in the HWM-2 landfill would no 
longer be subject to regulation under 40 CFR Parts 262 through 268 and 
the permitting standards of 40 CFR Part 270. Although management of the 
wastes covered by this petition would, upon final promulgation, be 
relieved from Subtitle C jurisdiction, the waste would remain a solid 
waste under RCRA. As such, the waste must be handled in accordance with 
all applicable Federal and State solid waste management regulations.

III. Limited Effect of Federal Exclusion

    This proposed rule, if promulgated, would be issued under the 
Federal (RCRA) delisting program. States, however, are allowed to 
impose their own, non-RCRA regulatory requirements that are more 
stringent than EPA's, pursuant to section 3009 of RCRA. These more 
stringent requirements may include a provision which prohibits a 
Federally issued exclusion from taking effect in the States. Because a 
petitioner's waste may be regulated under a dual system (i.e., both 
Federal and State programs), petitioners are urged to contact State 
regulatory authorities to determine the current status of their wastes 
under the State laws.
    Furthermore, some States are authorized to administer a delisting 
program in lieu of the Federal program, i.e., to make their own 
delisting decisions. Therefore, this proposed exclusion, if 
promulgated, would not apply in those authorized States. If the 
petitioned waste will be transported to any State with delisting 
authorization, BSC must obtain delisting authorization from that State 
before the waste may be managed as nonhazardous in that State.

IV. Effective Date

    This rule, if made final, will become effective immediately upon 
final publication. The Hazardous and Solid Waste Amendments of 1984 
amended Section 3010 of RCRA to allow rules to become effective in less 
than six months when the regulated community does not need the six-
month period to come into compliance. That is the case here, because 
this rule, if finalized, would reduce the existing requirements for 
persons generating hazardous wastes. In light of the unnecessary 
hardship and expense that would be imposed on this petitioner by an 
effective date six months after publication and the fact that a six-
month deadline is not necessary to achieve the purpose of Section 3010, 
EPA believes that this exclusion should be effective immediately upon 
final publication. These reasons also provide a basis for making this 
rule effective immediately, upon final publication, under the 
Administrative Procedure Act, pursuant to 5 USC 553(d).

V. Regulatory Impact

    Under Executive Order 12866, EPA must conduct an ``assessment of 
the potential costs and benefits'' for all ``significant'' regulatory 
actions. The effect of this proposed rule would be to reduce the 
overall costs and economic impact of EPA's hazardous waste management 
regulations. This reduction would be achieved by excluding waste from 
EPA's lists of hazardous wastes, thereby enabling this facility to 
treat its waste as non-hazardous. Therefore, this proposed rule would 
not be a significant regulatory action under the Executive Order, and 
no assessment of costs and benefits is necessary. The Office of 
Management and Budget (OMB) has also exempted this proposed rule from 
the requirement for OMB review under Section (6) of Executive Order 
12866.

VI. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612, 
whenever an agency is required to publish a general notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the impact of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
No regulatory flexibility analysis is required, however, if the 
Administrator or delegated representative certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities.
    This rule, if promulgated, will not have an adverse economic impact 
on any small entities since its effect would be to reduce the overall 
costs of EPA's hazardous waste regulations and would be limited to one 
facility. Accordingly, I hereby certify that this proposed regulation, 
if promulgated, will not have a significant economic impact on a 
substantial number of small entities. This regulation, therefore, does 
not require a regulatory flexibility analysis.

VII. Paperwork Reduction Act

    Information collection and record-keeping requirements associated 
with this proposed rule have been approved by the Office of Management 
and Budget (OMB) under the provisions of the Paperwork Reduction Act of 
1980 (Pub.L. 96-511, 44 U.S.C 3501 et seq.) and have been assigned OMB 
Control Number 2050-0053.

VIII. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``UMRA''), Public Law 104-4, which was signed into law on March 22, 
1995, EPA generally must prepare a written statement for rules with 
Federal mandates that may result in estimated costs to State, local, 
and tribal governments in the aggregate, or to the private sector, of 
$100 million or more in any one year. When such a statement is required 
for EPA rules, under section 205 of the UMRA EPA must identify and 
consider alternatives, including the least costly, most cost-effective 
or least burdensome alternative that achieves the objectives of the 
rule. EPA must select that alternative, unless the Administrator 
explains in the final rule why it was not selected or it is 
inconsistent with law. Before EPA establishes regulatory requirements 
that may significantly or uniquely affect small governments, including 
tribal governments, it must develop under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, giving them meaningful and 
timely input in the development of EPA regulatory proposals with 
significant Federal intergovernmental mandates, and informing, 
educating, and advising them 

[[Page 62806]]
on compliance with the regulatory requirements.
    The UMRA generally defines a Federal mandate for regulatory 
purposes as one that imposes an enforceable duty upon State, local, or 
tribal governments or the private sector. EPA finds that today's 
proposed delisting decision is deregulatory in nature and does not 
impose any enforceable duty on any State, local, or tribal governments 
or the private sector. In addition, the proposed delisting does not 
establish any regulatory requirements for small governments and so does 
not require a small government agency plan under UMRA section 203.

List of Subjects in 40 CFR Part 261

    Hazardous waste, Recycling, Reporting and Recordkeeping 
requirements.

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

    Dated: November 6, 1995.
Michael H. Shapiro,
Director, Office of Solid Waste.

    For the reasons set out in the preamble, 40 CFR Part 261 is 
proposed to be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for Part 261 continues to read as 
follows:

    Authority: 42 U.S.C 6905, 6912(a), 6921, 6922, and 6938.

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

Appendix IX--Wastes Excluded Under Secs. 260.20 and 260.22.

                                 Table 2.--Wastes Excluded From Specific Sources                                
----------------------------------------------------------------------------------------------------------------
                  Facility                                     Address                      Waste description   
----------------------------------------------------------------------------------------------------------------
                                                                                                                
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
Bethlehem Steel Corporation.................  Lackawanna, New York.....................  Ammonia still lime     
                                                                                          sludge (EPA Hazardous 
                                                                                          Waste No. K060) and   
                                                                                          other solid waste     
                                                                                          generated from primary
                                                                                          metal-making and      
                                                                                          coking operations.    
                                                                                          This is a one-time    
                                                                                          exclusion for         
                                                                                          approximately 110,000 
                                                                                          cubic yards of waste  
                                                                                          contained in the on-  
                                                                                          site landfill referred
                                                                                          to as HWM-2. This     
                                                                                          exclusion was         
                                                                                          published on [insert  
                                                                                          date of final rule].  
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
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[FR Doc. 95-29897 Filed 12-6-95; 8:45 am]
BILLING CODE 6560-50-P