[Federal Register Volume 61, Number 80 (Wednesday, April 24, 1996)]
[Rules and Regulations]
[Pages 18088-18092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10106]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261

[SW-FRL-5461-2]


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 or Agency) today is 
granting 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. This action responds to BSC's petition to delist 
these wastes on a ``generator-specific'' basis from the hazardous waste 
lists. 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. Accordingly, this final rule excludes the petitioned waste 
from the requirements of hazardous waste regulations under Subtitle C 
of the Resource Conservation and Recovery Act (RCRA).

EFFECTIVE DATE: April 24, 1996.

ADDRESSES: The RCRA regulatory docket for this final rule is located at 
Crystal Gateway #1, 1st Floor, 1235 Jefferson Davis Highway, Arlington, 
VA, and is available for viewing from 9 a.m. to 4 p.m., Monday through 
Friday, excluding Federal holidays. Call (703) 603-9230 for 
appointments. The reference number for this docket is F-96-B5EF-FFFFF. 
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

    Under 40 CFR 260.20 and 260.22, facilities may petition the Agency 
to remove their wastes from hazardous waste control by excluding them 
from the lists of hazardous wastes contained in Secs. 261.31 and 
261.32. Specifically, Sec. 260.20 allows any person to petition the 
Administrator to modify or revoke any provision of parts 260 through 
265 and 268 of Title 40 of the Code of Federal Regulations; and 
Sec. 260.22 provides generators the opportunity to petition the 
Administrator to exclude a waste on a ``generator-specific'' basis from 
the hazardous waste lists. Petitioners must provide sufficient 
information to EPA to allow the Agency to determine that the waste to 
be excluded does not meet any of the

[[Page 18089]]

criteria under which the waste was listed as a hazardous waste. In 
addition, the Administrator must determine, where he 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.

B. History of This Rulemaking

    Bethlehem Steel Corporation (BSC), Lackawanna, New York, petitioned 
the Agency to exclude from hazardous waste control its ammonia still 
lime sludge presently listed as EPA Hazardous Waste No. K060. After 
evaluating the petition, EPA proposed, on December 7, 1995, to exclude 
BSC's waste from the lists of hazardous waste under Sec. 261.31 and 
Sec. 261.32 (see 60 FR 62794). This rulemaking addresses public 
comments received on the proposal and finalizes the proposed decision 
to grant BSC's petition.

II. Disposition of Delisting Petition

    Bethlehem Steel Corporation, Lackawanna, New York

A. Proposed 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 U.S.C. 6921(f), and 40 CFR 
260.22(d)(2)-(4).
    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 might have been 
adversely impacting groundwater quality at the site. On August 26, 
1991, the Agency published a final denial, including responses to 
public comments, in the Federal Register (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 (EPA's Composite Model for Landfills 
(``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 proposed on December 7, 1995 
to withdraw its August 26, 1991 final denial decision and to grant 
BSC's petition (see 60 FR 62794 for details).
    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 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) ground-water monitoring data 
collected from wells monitoring the on-site landfill.

B. Response to Public Comments

    Comment: The Agency received public comments from one interested 
party (BSC) on the December 7, 1995 proposal. The commenter expressed 
its strong support for the proposed rule and urged the Agency to 
finalize this rulemaking as soon as practicable. The commenter also 
stated it ``does not believe that any of its comments materially affect 
the Agency analyses, evaluations and conclusions in the proposed 
rule.'' However, the commenter recommended a slight modification of the 
proposed language for the regulatory exclusion. Specifically, the 
commenter recommended that based on its legal survey of the landfill 
surface acreage and resulting recalculation of the waste volume 
contained in the unit, the proposed exclusion language in the Waste 
Description at 40 CFR part 261, Appendix IX be modified to specify 
approximately 118,000 cubic yards of waste, in lieu of 110,000 cubic 
yards. The commenter contended that such an increase in waste volume 
does not affect the Agency's EPACML evaluation of BSC's waste.
    Some of the other comments relate to the conservative nature of the 
Agency's analysis and evaluation of BSC's petition. The commenter 
agreed that EPA's use of the EPACML model as described in the proposal 
is an appropriate means for evaluating its petitioned waste. However, 
the commenter briefly described several conservative assumptions 
(pertaining to input parameter frequency distributions, infinite 
steady-state contaminant source, and various subsurface attenuation 
mechanisms including biodegradation of organics, metal precipitation, 
non-

[[Page 18090]]

linear non-equilibrium sorption phenomena, etc.) inherent in the 
EPACML, and believed that the model as proposed is more appropriate for 
use as a worst-case, first-stage screening tool in a delisting 
evaluation. The commenter also argued that the Agency's use of EP and 
TCLP extract concentrations as inputs to the EPACML tends to overstate 
the real-world leaching potential of metals from wastes that are not 
reasonably likely to be co-disposed in a municipal landfill 
environment. Moreover, the commenter questioned the Agency's use of the 
proposed health-based levels for lead and 1,1-dichloroethane, meaning 
that they may be too stringent.
    Finally, the commenter presented a variety of clarifications and 
corrections, primarily for the record, on miscellaneous items and 
details addressed in the proposed rule. The commenter considered these 
to be ``relatively minor''. The commenter also believed that any EPA 
statements, comments, or interpretations pertaining to the regulatory 
status of the HWM-2 landfill and BSC's compliance obligations are not 
necessary.
    Response: In the December 7, 1995 proposal, the Agency determined 
that disposal in any Subtitle D landfill is the most reasonable, worst-
case disposal scenario for BSC's petitioned waste, that the major 
exposure route of concern for any hazardous constituents would be 
ingestion of contaminated groundwater, and that the EPACML fate and 
transport model is appropriate for evaluating BSC's petitioned waste. 
As further explained in the ``Docket Report on EPACML Evaluation of 
Bethlehem Steel's Petitioned Waste'' contained in the public docket for 
the proposed rule, the Agency used an EPACML dilution/attenuation 
factor (DAF) of 48 to evaluate the potential for groundwater 
contamination due to contaminant releases from BSC's estimated waste 
volume of 110,000 cubic yards. The Agency notes here that this one-time 
waste volume of 110,000 cubic yards (equivalent to annual generation of 
5,500 cubic yards over 20 years) actually corresponds to an EPACML DAF 
of 51. In order to account for possible variations associated with land 
survey and volume calculations, the Agency in fact applied a slightly 
lower, thus more stringent, DAF of 48 corresponding to one-time waste 
volume of 120,000 cubic yards, or 6,000 cubic yards/year x 20 years. 
Hence, increasing the petitioned volume from 110,000 cubic yards to 
118,000 cubic yards (less than 120,000 cubic yards) has no adverse 
effect on the results of the Agency's evaluation of the potential 
impact of BSC's waste via groundwater route of exposure.
    The small volume increase of 8,000 cubic yards (constituting only 
7.3% of 110,000 cubic yards) does not adversely affect the Agency's air 
and surface water evaluations either, for the following reasons. As 
discussed in the proposed rule, the Agency's evaluation of the 
potential hazards resulting from air and surface water routes of 
exposure to BSC's petitioned waste quantity of 110,000 cubic yards were 
very conservative. Furthermore, the calculated airborne and surface 
water release concentrations at the assumed downgradient receptors were 
well below (more than 10 times and 29 times lower, respectively) the 
applicable air emissions levels of concern and water quality criteria 
for consumption of water and organisms used for the evaluation of BSC's 
waste (see docket for the proposed rule). Therefore, calculations based 
on 118,000 cubic yards (as compared to 110,000 cubic yards) would 
result in an insignificant change in air and surface water releases.
    Consequently, the Agency is finalizing the exclusion language in 40 
CFR part 261, Appendix IX, Table 2 to delist 118,000 cubic yards of the 
petitioned waste as the commenter (i.e., BSC) recommended. The Agency 
believes this revised volume more accurately reflects the actual waste 
quantity contained in the petitioned HWM-2 landfill. The other issues 
raised by the commenter with respect to the conservative nature of the 
Agency's analysis and evaluation of BSC's petition as well as the 
commenter's clarifications and corrections for the record do not affect 
EPA's decision to grant this petition; therefore, the Agency is not 
addressing those comments in today's rule. The Agency would like to 
refer the readers to relevant Agency responses to some similar comments 
provided in previous delisting rulemakings, e.g., 56 FR 67197, December 
30, 1991; 58 FR 40067, July 27, 1993; 60 FR 31107, June 13, 1995.

E. Final Agency Decision

    For the reasons stated in both the proposal and this final rule, 
the Agency believes that BSC's petitioned waste should be excluded from 
hazardous waste control. The Agency, therefore, is granting a final 
exclusion to Bethlehem Steel Corporation, Lackawanna, New York, for its 
ammonia still lime sludge and other co-disposed solid wastes contained 
in the on-site landfill referred to as HWM-2, described in the petition 
as EPA Hazardous Waste No. K060. This one-time exclusion applies to 
118,000 cubic yards of waste covered by BSC's delisting demonstration.
    Although management of the waste covered by this petition is 
relieved from Subtitle C jurisdiction by this final exclusion, the 
generator of the delisted waste must either treat, store, or dispose of 
the waste in an on-site facility, or ensure that the waste is delivered 
to an off-site storage, treatment, or disposal facility, either of 
which is permitted, licensed, or registered by a State to manage 
municipal or industrial solid waste. Alternatively, the delisted waste 
may be delivered to a facility that beneficially uses or reuses, or 
legitimately recycles or reclaims the waste, or treats the waste prior 
to such beneficial use, reuse, recycling, or reclamation (see 40 CFR 
part 260, Appendix I).

III. Limited Effect of Federal Exclusion

    The final exclusion being granted today is 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 (RCRA) 
and State (non-RCRA) programs), petitioners are urged to contact State 
regulatory authorities to determine the current status of their wastes 
under the State laws.
    Furthermore, some States are authorized to administer a delisting 
program in lieu of the Federal program, i.e., to make their own 
delisting decisions. Therefore, this exclusion does not apply in those 
authorized States. If the petitioned waste will be transported to and 
managed in 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 is effective on April 24, 1996. 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 reduces 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

[[Page 18091]]

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 Sec. 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 rule is to reduce the overall costs and 
economic impact of EPA's hazardous waste management regulations. The 
reduction is achieved by excluding waste from EPA's lists of hazardous 
wastes, thereby enabling the facility to treat its waste as non-
hazardous. This rule does not represent 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 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 will not have an adverse economic impact on any small 
entities since its effect will be to reduce the overall costs of EPA's 
hazardous waste regulations and will be limited to one facility. 
Accordingly, I hereby certify that this regulation 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 final 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''), Pub. L. 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 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 
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, today's delisting decision 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.

    Dated: April 4, 1996.
James R. Berlow,
Acting Director, Office of Solid Waste.

    For the reasons set out in the preamble, 40 CFR part 261 is 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    Ammonia still lime   
                                 York.              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 118,000 cubic   
                                                    yards of waste      
                                                    contained in the on-
                                                    site landfill       
                                                    referred to as HWM- 
                                                    2. This exclusion   
                                                    was published on    
                                                    April 24, 1996.     
                                                                        
*                *                *                *                *   
                                  *                *                    
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[FR Doc. 96-10106 Filed 4-23-96; 8:45 am]
BILLING CODE 6560-50-P