Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Proposed Exclusion, 54770-54780 [E8-21228]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 73, Number 185 (Tuesday, September 23, 2008)]
[Proposed Rules]
[Pages 54770-54780]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-21228]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R06-RCRA-2008-0457; SW-FRL-8713-1]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

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SUMMARY: EPA is proposing to grant a petition submitted by Cooper 
Crouse-Hinds (C-H) to exclude (or delist) a wastewater treatment plant 
(WWTP) sludge and filter sand (collectively, sludge) generated by C-H 
in Amarillo, TX from the lists of hazardous wastes. EPA used the 
Delisting Risk Assessment Software (DRAS) in the evaluation of the 
impact of the petitioned waste on human health and the environment.
    EPA bases its proposed decision to grant the petition on an 
evaluation of waste-specific information provided by the petitioner. 
This proposed decision, if finalized, would exclude the petitioned 
waste from the requirements of hazardous waste regulations under the 
Resource Conservation and Recovery Act (RCRA).
    If finalized, EPA would conclude that C-H's petitioned waste is 
non-hazardous with respect to the original listing criteria. EPA would 
also conclude that C-H's process minimizes short-term and long-term 
threats from the petitioned waste to human health and the environment.

DATES: We will accept comments until October 23, 2008. We will stamp 
comments postmarked after the close of the comment period as ``late.'' 
These ``late'' comments may not be considered in formulating a final 
decision.
    Your requests for a hearing must reach EPA by October 8, 2008. The 
request must contain the information described in Sec.  260.20(d).

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
RCRA-2008-0457 by one of the following methods:
    1. Federal eRulemaking Portal: https://www.regulations.gov: follow 
the on-line instructions for submitting comments.
    2. E-mail: kim.youngmoo@epa.gov.
    3. Mail: Youngmoo Kim, Environmental Protection Agency, Multimedia 
Planning and Permitting Division, RCRA Branch, Mail Code: 6PD-C, 1445 
Ross Avenue, Dallas, TX 75202.
    4. Hand Delivery or Courier: Deliver your comments to: Youngmoo 
Kim, Environmental Protection Agency, Multimedia Planning and 
Permitting Division, RCRA Branch, Mail Code: 6PD-C, 1445 Ross Avenue, 
Dallas, TX 75202.
    Instructions: Direct your comments to Docket ID No. EPA-R06-RCRA-
2008-0457. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
https://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through https://
www.regulations.gov or e-mail. The https://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through https://

[[Page 54771]]

www.regulations.gov, your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses.
    Docket. All documents in the electronic docket are listed in the 
https://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
at https://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, RCRA Branch, 1445 Ross Avenue, Dallas, TX 75202. The 
hard copy RCRA regulatory docket for this proposed rule, EPA-R06-RCRA-
2008-0457, is available for viewing from 9 a.m. to 4 p.m., Monday 
through Friday, excluding Federal holidays. The public may copy 
material from the regulatory docket at no cost for the first 100 pages 
and at $0.15 per page for additional copies. EPA requests that you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The interested persons wanting to 
examine these documents should make an appointment with the office at 
least 24 hours in advance.

FOR FURTHER INFORMATION CONTACT: For technical information regarding 
the Cooper Crouse-Hinds petition, contact Youngmoo Kim at 214-665-6788 
or by e-mail at kim.youngmoo@epa.gov.

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

I. Overview Information
    A. What action is EPA proposing?
    B. Why is EPA proposing to approve this delisting?
    C. How will C-H manage the waste, if it is delisted?
    D. When would the proposed delisting exclusion be finalized?
    E. How would this action affect states?
II. Background
    A. What is the history of the delisting program?
    B. What is a delisting petition, and what does it require of a 
petitioner?
    C. What factors must EPA consider in deciding whether to grant a 
delisting petition?
III. EPA's Evaluation of the Waste Information and Data
    A. What waste did C-H petition EPA to delist?
    B. Who is C-H and what process does it use to generate the 
petitioned waste?
    C. How did C-H sample and analyze the data in this petition?
    D. What were the results of C-H's analyses?
    E. How did EPA evaluate the risk of delisting this waste?
    F. What changes have been made to the DRAS model?
    G. What did EPA conclude about C-H's analysis?
    H. What other factors did EPA consider in its evaluation?
    I. What is EPA's evaluation of this delisting petition?
IV. Next Steps
    A. With what conditions must the petitioner comply?
    B. What happens if C-H violates the terms and conditions?
V. Public Comments
    A. How may I as an interested party submit comments?
    B. How may I review the docket or obtain copies of the proposed 
exclusion?
VI. Statutory and Executive Order Reviews

I. Overview Information

A. What action is EPA proposing?

    EPA is proposing:
    (1) To grant C-H's delisting petition to have its WWTP sludge 
excluded, or delisted, from the definition of a hazardous waste; and 
subject to certain verification and monitoring conditions.
    (2) To use the Delisting Risk Assessment Software (DRAS) to 
evaluate the potential impact of the petitioned waste on human health 
and the environment. The Agency used this model to predict the 
concentration of hazardous constituents released from the petitioned 
waste, once it is disposed.

B. Why is EPA proposing to approve this delisting?

    C-H's petition requests an exclusion from the F006 waste listing 
pursuant to 40 CFR 260.20 and 260.22. C-H does not believe that the 
petitioned waste meets the criteria for which EPA listed it. C-H also 
believes no additional constituents or factors could cause the waste to 
be hazardous. EPA's review of this petition included consideration of 
the original listing criteria and the additional factors required by 
the Hazardous and Solid Waste Amendments of 1984 (HSWA). See section 
3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(1)-(4) 
(hereinafter all sectional references are to 40 CFR unless otherwise 
indicated). In making the initial delisting determination, EPA 
evaluated the petitioned waste against the listing criteria and factors 
cited in Sec. Sec.  261.11(a)(2) and (a)(3). Based on this review, EPA 
agrees with the petitioner that the waste is non-hazardous with respect 
to the original listing criteria. If EPA 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 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. EPA 
considered whether the waste is acutely toxic, 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. EPA 
believes that the petitioned waste does not meet the listing criteria 
and thus should not be a listed waste. EPA's proposed decision to 
delist waste from C-H is based on the information submitted in support 
of this rule, including descriptions of the wastes and analytical data 
from the Amarillo, TX facility.

C. How will C-H manage the waste, if it is delisted?

    If the sludge is delisted, the WWTP sludge from C-H will be 
disposed of at the following RCRA Subtitle D lined landfill with a 
leachate collection system: The Allied Waste Service Southwest Subtitle 
D landfill in Canyon, Texas.

D. When would the proposed delisting exclusion be finalized?

    RCRA section 3001(f) specifically requires EPA to provide a notice 
and an opportunity for comment before granting or denying a final 
exclusion. Thus, EPA will not grant the exclusion until it addresses 
all timely public comments (including those at public hearings, if any) 
on this proposal.
    RCRA section 3010(b)(1) at 42 USCA 6930(b)(1), allows rules to 
become effective in less than six months when the regulated facility 
does not need the six-month period to come into compliance. That is the 
case here, because this rule, if finalized, would

[[Page 54772]]

reduce the existing requirements for persons generating hazardous 
wastes.
    EPA believes that this exclusion should be effective immediately 
upon final publication because a six-month deadline is not necessary to 
achieve the purpose of section 3010(b), and a later effective date 
would impose unnecessary hardship and expense on this petitioner. These 
reasons also provide good cause for making this rule effective 
immediately, upon final publication, under the Administrative Procedure 
Act, 5 U.S.C. 553(d).

E. How would this action affect states?

    Because EPA is issuing this exclusion under the Federal RCRA 
delisting program, only states subject to Federal RCRA delisting 
provisions would be affected. This would exclude states which have 
received authorization from EPA to make their own delisting decisions.
    EPA allows states to impose their own non-RCRA regulatory 
requirements that are more stringent than EPA's, under section 3009 of 
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a 
provision that prohibits a Federally issued exclusion from taking 
effect in the state. Because a dual system (that is, both Federal 
(RCRA) and state (non-RCRA) programs) may regulate a petitioner's 
waste, EPA urges petitioners to contact the state regulatory authority 
to establish the status of their wastes under the state law.
    EPA has also authorized some states (for example, Louisiana, 
Oklahoma, Georgia, Illinois) to administer a RCRA delisting program in 
place of the Federal program, that is, to make state delisting 
decisions. Therefore, this exclusion does not apply in those authorized 
states unless that state makes the rule part of its authorized program. 
If C-H transports the petitioned waste to or manages the waste in any 
state with delisting authorization, C-H must obtain delisting 
authorization from that state before it can manage the waste as non-
hazardous in the state.

II. Background

A. What is the history of the delisting program?

    EPA published an amended list of hazardous wastes from non-specific 
and specific sources on January 16, 1981, as part of its final and 
interim final regulations implementing section 3001 of RCRA. EPA has 
amended this list several times and published it in Sec. Sec.  261.31 
and 261.32.
    EPA lists these wastes as hazardous because: (1) The wastes 
typically and frequently exhibit one or more of the characteristics of 
hazardous wastes identified in Subpart C of part 261 (that is, 
ignitability, corrosivity, reactivity, and toxicity), (2) the wastes 
meet the criteria for listing contained in Sec. Sec.  261.11(a)(2) or 
(a)(3), or (3) the wastes are mixed with or derived from the treatment, 
storage or disposal of such characteristic and listed wastes and which 
therefore become hazardous under Sec. Sec.  261.3(a)(2)(iv) or 
(c)(2)(i), known as the ``mixture'' or ``derived-from'' rules, 
respectively.
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
described in these regulations or resulting from the operation of the 
mixture or derived-from rules generally is hazardous, a specific waste 
from an individual facility may not be hazardous.
    For this reason, Sec. Sec.  260.20 and 260.22 provide an exclusion 
procedure, called delisting, which allows persons to prove that EPA 
should not regulate a specific waste from a particular generating 
facility as a hazardous waste.

B. What is a delisting petition, and what does it require of a 
petitioner?

    A delisting petition is a request from a facility to EPA or an 
authorized state to exclude wastes from the list of hazardous wastes. 
The facility petitions EPA because it does not consider the wastes 
hazardous under RCRA regulations.
    In a delisting petition, the petitioner must show that wastes 
generated at a particular facility do not meet any of the criteria for 
which the waste was listed. The criteria for which EPA lists a waste 
are in part 261 and further explained in the background documents for 
the listed waste.
    In addition, under Sec.  260.22, a petitioner must prove that the 
waste does not exhibit any of the hazardous waste characteristics (that 
is, ignitability, reactivity, corrosivity, and toxicity) and present 
sufficient information for EPA to decide whether factors other than 
those for which the waste was listed warrant retaining it as a 
hazardous waste. (See part 261 and the background documents for the 
listed waste.)
    Generators remain obligated under RCRA to confirm whether their 
waste remains non-hazardous based on the hazardous waste 
characteristics even if EPA has ``delisted'' the waste.

C. What factors must EPA consider in deciding whether to grant a 
delisting petition?

    Besides considering the criteria in Sec.  260.22(a) and section 
3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for 
the listed wastes, EPA must consider any factors (including additional 
constituents) other than those for which EPA listed the waste, if a 
reasonable basis exists that these additional factors could cause the 
waste to be hazardous.
    EPA must also consider as hazardous waste mixtures containing 
listed hazardous wastes and wastes derived from treating, storing, or 
disposing of listed hazardous waste. See Sec. Sec.  261.3(a)(2)(iii and 
iv) and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules, 
respectively. These wastes are also eligible for exclusion and remain 
hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).

III. EPA's Evaluation of the Waste Information and Data

A. What waste did C-H petition EPA to delist?

    On March 25, 2008, C-H petitioned EPA to exclude from the lists of 
hazardous wastes contained in Sec.  261.31, WWTP sludge (F006) 
generated from its facility located in Amarillo, Texas. The waste falls 
under the classification of listed waste pursuant to Sec.  261.31. 
Specifically, in its petition, C-H requested that EPA grant a standard 
exclusion for 819 cubic yards per year of the WWTP sludge.

B. Who is C-H and what process does it use to generate the petitioned 
waste?

    The facility manufactures electrical fittings plated zinc for 
corrosion resistance. Non-current electrical wiring system products 
commonly called conduit fitting have been manufactured at this facility 
since 1982. The zinc plating system is non-cyanide containing zinc 
chloride to electroplate zinc onto cast gray iron electrical fittings 
to reduce the potential for the fittings to corrode when installed in 
outdoor or chemical environment. The sludge is generated by wastewater 
treatment of the zinc plating rinse water to remove oil, grease and 
metals.
    The sludge is transferred to filter press and separate particles 
from the liquid, creating the filter press sludge cake. The final stage 
of wastewater treatment system includes two sand filters that serve to 
polish the discharged water. The sludge cake and used sands are listed 
as listed hazardous, F006 and disposed in a RCRA Subtitle C permitted 
hazardous waste landfill in Emelle, Alabama.

[[Page 54773]]

C. How did C-H sample and analyze the data in this petition?

    To support its petition, C-H submitted:
    (1) Historical information on waste generation and management 
practices;
    (2) Analytical results from four samples for total concentrations 
of compounds of concern (COCs);
    (3) Analytical results from four samples for Toxicity 
Characteristic Leaching Procedure (TCLP) extract values of COCs; and
    (4) Multiple pH testing for the petitioned waste.

D. What were the results of C-H's analyses?

    EPA believes that the descriptions of the C-H analytical 
characterization provide a reasonable basis to grant C-H's petition for 
an exclusion of the WWTP sludge. EPA believes the data submitted in 
support of the petition show the WWTP sludge is non-hazardous. 
Analytical data for the WWTP sludge samples were used in the DRAS to 
develop delisting levels. The data summaries for COCs are presented in 
Table I. EPA has reviewed the sampling procedures used by C-H and has 
determined that it satisfies EPA criteria for collecting representative 
samples of the variations in constituent concentrations in the WWTP 
sludge. In addition, the data submitted in support of the petition show 
that constituents in C-H's waste are presently below health-based 
levels used in the delisting decision-making. EPA believes that C-H has 
successfully demonstrated that the WWTP sludge is non-hazardous.

                      Table 1--Analytical Results/Maximum Allowable Delisting Concentration
                       [Wastewater Treatment Sludge--Cooper Crouse-Hinds, Amarillo, Texas]
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                                                                                               Maximum allowable
                      Constituents                       Maximum total (mg/ Maximum TCLP (mg/    TCLP delisting
                                                                kg)                 L)            level (mg/L)
----------------------------------------------------------------------------------------------------------------
Arsenic................................................              <2.00              0.072             0.0759
Barium.................................................               11.2               1.08              (100)
Benzene................................................              <0.02            0.00218              (0.5)
Cadmium................................................               1.58              0.006              0.819
Cooper.................................................               7.41              0.049                216
Iron...................................................              26200              0.197               1.24
Manganese..............................................                693               1.60                145
Nickel.................................................               4.71              0.014                119
Zinc...................................................              27300               1.51              1810
----------------------------------------------------------------------------------------------------------------
Notes:
1. These levels represent the highest constituent concentration found in any one sample and do not necessarily
  represent the specific level found in one sample.
2. The delisting levels are from the DRAS analyses except the chemicals with a parenthesis which are the TCLP
  regulatory levels.

E. How did EPA evaluate the risk of delisting this waste?

    The worst case scenario for management of the sludge was modeled 
for disposal in a landfill. EPA used such information gathered to 
identify plausible exposure routes (i.e., ground water, surface water, 
soil, air) for hazardous constituents present in the sludge. EPA 
determined that disposal in a Subtitle D landfill is the most 
reasonable, worst-case disposal scenario for the wastes. In assessing 
potential risks to ground water, EPA used the maximum estimated waste 
volumes and the maximum reported extract concentrations as inputs to 
the DRAS program to estimate the constituent concentrations in the 
ground water at a hypothetical receptor well down gradient from the 
disposal site. Using the risk level (carcinogenic risk of 
10-5 and non-cancer hazard index of 0.1), the DRAS program 
can back-calculate the acceptable receptor well concentrations 
(referred to as compliance-point concentrations) using standard risk 
assessment algorithms and Agency health-based numbers. Using the 
maximum compliance-point concentrations and EPA Composite Model for 
Leachate Migration with Transformation Products (EPACMTP) fate and 
transport modeling factors, the DRAS further back-calculates the 
maximum permissible waste constituent concentrations not expected to 
exceed the compliance-point concentrations in ground water.
    EPA believes that the EPACMTP fate and transport model represents a 
reasonable worst-case scenario for possible ground water contamination 
resulting from 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 
RCRA Subtitle C. The use of some reasonable worst-case scenarios 
resulted in conservative values for the compliance-point concentrations 
and ensured that the waste, once removed from hazardous waste 
regulation, will not pose a significant threat to human health and/or 
the environment. The DRAS also uses the maximum estimated waste volumes 
and the maximum reported total concentrations to predict possible risks 
associated with releases of waste constituents through surface pathways 
(e.g., volatilization or wind-blown particulate from the landfill). As 
in the above ground water analyses, the DRAS uses the risk level, the 
health-based data and standard risk assessment and exposure algorithms 
to predict maximum compliance-point concentrations of waste 
constituents at a hypothetical point of exposure. Using fate and 
transport equations, the DRAS uses the maximum compliance-point 
concentrations and back-calculates the maximum allowable waste 
constituent concentrations (or ``delisting levels'').
    In most cases, because a delisted waste is no longer subject to 
hazardous waste control, EPA is generally unable to predict, and does 
not presently control, how a petitioner will manage a waste after 
delisting. Therefore, EPA currently believes that it is inappropriate 
to consider extensive site-specific factors when applying the fate and 
transport model. EPA does control the type of unit where the waste is 
disposed.
    EPA also considers the applicability of ground water monitoring 
data during the evaluation of delisting petitions. In this case, the 
facilities have never directly disposed of this material in a solid 
waste landfill, so no representative data exists. Therefore, EPA has

[[Page 54774]]

determined that it would be unnecessary to request ground water 
monitoring data.
    EPA believes that the descriptions of the wastes and analytical 
characterization which illustrate the presence of toxic constituents at 
lower concentrations in these waste streams provide a reasonable basis 
to conclude that the likelihood of migration of hazardous constituents 
from the petitioned waste will be substantially reduced so that short-
term and long-term threats to human health and the environment are 
minimized.
    The DRAS results, which calculated the maximum allowable 
concentration of chemical constituents in the wastes are presented in 
Table 1. Based on the comparison of the DRAS results and maximum TCLP 
concentrations found in Table 1, the petitioned wastes should be 
delisted because no constituents of concern are likely to be present or 
formed as reaction products or by products in the wastes.

 F. What changes have been made to the DRAS model?

    Since July 2004, EPA has been preparing an update of the DRAS 
version 2.0. The software will be released as version 3.0. This 
methodology was used to evaluate the C-H petition. The DRAS 3.0 
addresses a number of issues with version 2 and improved the fate and 
transport modeling.
    To estimate the downgradient concentrations of waste leachate 
constituents released into ground water, the DRAS utilizes conservative 
dilution-attenuation factors (DAFs) taken from Monte-Carlo applications 
of U.S. EPA's Composite Model for Leachate Migration with 
Transformation Products (CMTP). DRAS 3.0 includes all new DAFs from new 
CMTP modeling runs. The new modeling takes advantage of: updated 
saturated flow and transport modules; a new surface impoundment module 
and database; model corrections for unrealistic scenarios (like water 
tables modeled above the ground surface); new isotherms for metals; and 
a revised recharge and infiltration database. As a result, many of the 
DAFs used in previous versions of DRAS have changed.
    Further affecting the ground water calculation, the relationships 
for determining scaling factors used to scale the DAFs to account for 
very small waste streams have been updated to reflect the new database 
information on landfills and surface impoundments and were also 
corrected for a metric conversion of cubic meters to cubic yards. The 
new scaling factors are generally higher than those of previous 
versions of DRAS, resulting in higher estimated dilution and 
attenuation at lower waste volumes for both landfills and surface 
impoundments.
    The new metals DAFs, based on MINTEQA2 isotherms, can vary as a 
function of the landfill leachate concentration. This means that the 
effective DAF (including a scaling factor adjustment, if necessary) for 
an input concentration may differ significantly with the effective DAF 
that corresponds to the allowable leachate concentration. DRAS 3.0 now 
displays the DAFs in both the forward calculated risk tables and the 
tables of maximum allowable concentrations so that the difference is 
evident to the user. The isotherms that vary by leachate concentration 
are represented in DRAS by a look-up table with leachate concentrations 
paired with DAFs. In the event that an actual concentration input to 
DRAS lies between two values in the table, or an allowable receptor 
concentration lies between two calculated receptor concentrations from 
the table, DRAS 3.0 will linearly and proportionally extrapolate 
between the two values to determine the corresponding exposure or 
allowable leachate concentration.
    EPA changed the calculation for particle emissions caused by 
vehicles driving over the waste at the landfill to provide a more 
realistic estimate. The estimate depends upon the number of trips per 
day landfill vehicles make back and forth over the waste. In previous 
versions of DRAS, this value was conservatively set at a 100 trips per 
day, corresponding with an extremely high annual waste volume. In DRAS 
3.0, a minimum number of trips per day was conservatively assumed from 
the Subtitle D landfill survey (7.4 trips per day at the 95th 
percentile of values reported). The number of trips per day specific to 
the actual waste volume is then added to the minimum to reflect the 
impact of very large waste streams. This will considerably reduce the 
particle emission estimate for wastes generated at all but the largest 
annual volumes.
    EPA added a conversion from English to metric tons to the 
calculation of particle emissions from waste unloading, resulting in a 
decrease of roughly 10% over previous versions of DRAS. We also made a 
unit-conversion factor correction to part of the air-volatile pathway 
which will reduce the impact to the receptor.
    An error in the back-calculation for fish ingestion pathway was 
corrected to reflect the difference between freely dissolved and total 
water column waste constituent concentrations.
    For the estimation of risk and hazard, we made a number of updates 
to the forward and back calculations. Previous versions of DRAS assumed 
that only 12.5% of particles are absorbed by the receptor's respiratory 
system. This is no longer necessary as toxicity reference values for 
inhalation currently recommended by U.S. EPA relate risk or hazard 
directly to exposure concentration. DRAS 3.0 does not include the 12.5% 
reduction. This change significantly increases estimated risks due to 
particle inhalation and lowers corresponding allowable concentrations.
    DRAS Version 3.0 has a reformulated back calculation of the 
allowable leachate concentrations from exposure due to contaminants 
volatilized during household water use to match the forward calculation 
of risk. In previous versions of DRAS, the forward calculation summed 
the risks from exposure to all three evaluated household compartments 
(the shower, the bathroom, and the whole house) while the back 
calculation based the maximum allowable level on the single most 
conservative compartment. The DRAS 3.0 maximum allowable leachate 
concentrations are now based on the combined impact of all three 
compartments. The house exposure was also expanded to a 900-minute (15 
hour) daily exposure to reflect non-working residents who have an 
overall 16 hour in-house exposure (the other 1 hour is spent in the 
shower and bathroom).
    EPA resolved the inconsistencies with the way DRAS chooses limiting 
pathways for specific waste constituents in DRAS 3.0.
    EPA checked all toxicity reference values in DRAS and updated where 
necessary. Approximately 180 changes were made to the toxicity 
reference values in DRAS based on data in IRIS, PPRTV, HEAST, NCEA, 
CalEPA and other sources. Some route-to-route extrapolations of oral 
toxicity data to inhalation exposure have been returned to DRAS 3.0 if 
consistent with Agency policy. See the Delisting Technical Support 
Document for full accounting of this methodology. The same reference 
also includes discussions of toxicity reference choices where the 
multiple values were available or where the toxicity reference values 
were specific to particular species of constituents.

G. What did EPA conclude about C-H's analysis?

    EPA concluded, after reviewing C-H's processes that no other 
hazardous constituents of concern, other than those for which tested, 
are likely to be present or formed as reaction products

[[Page 54775]]

or by-products in the waste. In addition, on the basis of explanations 
and analytical data provided by C-H, pursuant to Sec.  260.22, EPA 
concludes that the petitioned waste do not exhibit any of the 
characteristics of ignitability, corrosivity, reactivity or toxicity. 
See Sec. Sec.  261.21, 261.22 and 261.23, respectively.

H. What other factors did EPA consider in its evaluation?

    During the evaluation of C-H's petition, EPA also considered the 
potential impact of the petitioned waste via non-ground water routes 
(i.e., air emission and surface runoff). With regard to airborne 
dispersion in particular, EPA believes that exposure to airborne 
contaminants from C-H's petitioned waste is unlikely. Therefore, no 
appreciable air releases are likely from C-H's waste under any likely 
disposal conditions. EPA evaluated the potential hazards resulting from 
the unlikely scenario of airborne exposure to hazardous constituents 
released from C-H's waste in an open landfill. The results of this 
worst-case analysis indicated that there is no substantial present or 
potential hazard to human health and the environment from airborne 
exposure to constituents from C-H's WWTP waste.

I. What is EPA's evaluation of this delisting petition?

    The descriptions of C-H's hazardous waste process and analytical 
characterization provide a reasonable basis for EPA to grant the 
exclusion. The data submitted in support of the petition show that 
constituents in the waste are below the leachable concentrations (see 
Table I). EPA believes that C-H's waste, F006 from zinc electroplating 
process will not impose any threat to human health and the environment.
    Thus, EPA believes C-H should be granted an exclusion for the WWTP 
sludge. EPA believes the data submitted in support of the petition show 
C-H's WWTP sludge is non-hazardous. The data submitted in support of 
the petition show that constituents in C-H's waste are presently below 
the compliance point concentrations used in the delisting decision and 
would not pose a substantial hazard to the environment. EPA believes 
that C-H has successfully demonstrated that the WWTP sludge is non-
hazardous.
    EPA therefore, proposes to grant an exclusion to C-H in Amarillo, 
Texas, for the WWTP sludge described in its petition. EPA's decision to 
exclude this waste is based on descriptions of the treatment activities 
associated with the petitioned waste and characterization of the WWTP 
sludge.
    If EPA finalizes the proposed rule, EPA will no longer regulate the 
petitioned waste under parts 262 through 268 and the permitting 
standards of part 270.

IV. Next Steps

A. With what conditions must the petitioner comply?

    The petitioner, C-H, must comply with the requirements in 40 CFR 
part 261, appendix IX, Table 1. The text below gives the rationale and 
details of those requirements.
(1) Delisting Levels
    This paragraph provides the levels of constituents for which C-H 
must test the WWTP sludge, below which these wastes would be considered 
non-hazardous. EPA selected the set of inorganic and organic 
constituents specified in paragraph (1) of 40 CFR part 261, appendix 
IX, Table 1, (the exclusion language) based on information in the 
petition. EPA compiled the inorganic and organic constituents list from 
the composition of the waste, descriptions of C-H's treatment process, 
previous test data provided for the waste, and the respective health-
based levels used in delisting decision-making. These delisting levels 
correspond to the allowable levels measured in the TCLP concentrations.
(2) Waste Holding and Handling
    The purpose of this paragraph is to ensure that C-H manages and 
disposes of any WWTP sludge that contains hazardous levels of inorganic 
and organic constituents according to Subtitle C of RCRA. Managing the 
WWTP sludge as a hazardous waste until initial verification testing is 
performed will protect against improper handling of hazardous material. 
If EPA determines that the data collected under this paragraph do not 
support the data provided for in the petition, the exclusion will not 
cover the petitioned waste. The exclusion is effective upon publication 
in the Federal Register but the disposal as non-hazardous cannot begin 
until the verification sampling is completed.
(3) Verification Testing Requirements
    C-H must complete a rigorous verification testing program on the 
WWTP sludge to assure that the sludge does not exceed the maximum 
levels specified in paragraph (1) of the exclusion language. This 
verification program operates on two levels. The first part of the 
verification testing program consists of testing the WWTP sludge for 
specified indicator parameters as per paragraph (1) of the exclusion 
language. If EPA determines that the data collected under this 
paragraph do not support the data provided for the petition, the 
exclusion will not cover the generated wastes. If the data from the 
initial verification testing program demonstrate that the leachate 
meets the delisting levels, C-H may request quarterly testing. EPA will 
notify C-H in writing, if and when it may replace the testing 
conditions in paragraph (3)(A) with the testing conditions in (3)(B) of 
the exclusion language.
    The second part of the verification testing program is the 
quarterly testing of representative samples of WWTP sludge for all 
constituents specified in paragraph (1) of the exclusion language. EPA 
believes that the concentrations of the constituents of concern in the 
WWTP sludge may vary over time. Consequently this program will ensure 
that the sludge is evaluated in terms of variation in constituent 
concentrations in the waste over time.
    The proposed subsequent testing would verify that C-H operates a 
treatment facility where the constituent concentrations of the WWTP 
sludge do not exhibit unacceptable temporal and spatial levels of toxic 
constituents. EPA is proposing to require C-H to analyze representative 
samples of the WWTP sludge quarterly during the first year of waste 
generation. C-H would begin quarterly sampling 60 days after the final 
exclusion as described in paragraph (3)(B) of the exclusion language. 
EPA, per paragraph 3(C) of the exclusion language, is proposing to end 
the subsequent testing conditions after the first year, if C-H has 
demonstrated that the waste consistently meets the delisting levels. To 
confirm that the characteristics of the waste do not change 
significantly over time, C-H must continue to analyze a representative 
sample of the waste on an annual basis. Annual testing requires 
analyzing the full list of components in paragraph (1) of the exclusion 
language. If operating conditions change as described in paragraph (4) 
of the exclusion language; C-H must reinstate all testing in paragraph 
(1) of the exclusion language. C-H must prove through a new 
demonstration that their waste meets the conditions of the exclusion. 
If the annual testing of the waste does not meet the delisting 
requirements in paragraph (1), C-H must notify EPA according to the 
requirements in paragraph (6) of the exclusion language. The facility 
must provide sampling results that support

[[Page 54776]]

the rationale that the delisting exclusion should not be withdrawn.
(4) Changes in Operating Conditions
    Paragraph (4) of the exclusion language would allow C-H the 
flexibility of modifying its processes (for example, changes in 
equipment or change in operating conditions) to improve its treatment 
process. However, C-H must prove the effectiveness of the modified 
process and request approval from EPA. C-H must manage wastes generated 
during the new process demonstration as hazardous waste until it has 
obtained written approval and paragraph (3) of the exclusion language 
is satisfied.
(5) Data Submittals
    To provide appropriate documentation that C-H's WWTP sludge is 
meeting the delisting levels, C-H must compile, summarize, and keep 
delisting records on-site for a minimum of five years. It should keep 
all analytical data obtained through paragraph (3) of the exclusion 
language including quality control information for five years. 
Paragraph (5) of the exclusion language requires that C-H furnish these 
data upon request for inspection by any employee or representative of 
EPA or the State of Texas. If the proposed exclusion is made final, it 
will apply only to 819 yards per year of wastewater treatment sludge 
generated at the C-H after successful verification testing.
    EPA would require C-H to file a new delisting petition under any of 
the following circumstances:
    (a) If it significantly alters the manufacturing process treatment 
system except as described in paragraph (4) of the exclusion language;
    (b) If it uses any new manufacturing or production process(es), or 
significantly changes from the current process(es) described in their 
petition; or
    (c) If it makes any changes that could affect the composition or 
type of waste generated.
    C-H must manage waste volumes greater than 819 cubic yards per year 
of WWTP waste as hazardous until EPA grants a new exclusion. When this 
exclusion becomes final, C-H's management of the wastes covered by this 
petition would be relieved from Subtitle C jurisdiction, the WWTP 
sludge from C-H will be disposed to the RCRA Subtitle D landfill of the 
Allied Waste Service Southwest in Canyon, TX.
(6) Reopener
    The purpose of paragraph (6) of the exclusion language is to 
require C-H to disclose new or different information related to a 
condition at the facility or disposal of the waste, if it is pertinent 
to the delisting. C-H must also use this procedure if the waste sample 
in the annual testing fails to meet the levels found in paragraph (1). 
This provision will allow EPA to reevaluate the exclusion, if a source 
provides new or additional information to EPA. EPA will evaluate the 
information on which EPA based the decision to see if it is still 
correct, or if circumstances have changed so that the information is no 
longer correct or would cause EPA to deny the petition, if presented.
    This provision expressly requires C-H to report differing site 
conditions or assumptions used in the petition in addition to failure 
to meet the annual testing conditions within 10 days of discovery. If 
EPA discovers such information itself or from a third party, it can act 
on it as appropriate. The language being proposed is similar to those 
provisions found in RCRA regulations governing no-migration petitions 
at Sec.  268.6.
    EPA believes that it has the authority under RCRA and the 
Administrative Procedure Act (APA), 5 U.S.C. 551 (1978) et seq., to 
reopen a delisting decision. EPA may reopen a delisting decision when 
it receives new information that calls into question the assumptions 
underlying the delisting. EPA believes a clear statement of its 
authority in delistings is merited in light of EPA's experience. See 
Reynolds Metals Company at 62 FR 37694 and 62 FR 63458 where the 
delisted waste leached at greater concentrations in the environment 
than the concentrations predicted when conducting the TCLP, thus 
leading EPA to repeal the delisting. If an immediate threat to human 
health and the environment presents itself, EPA will continue to 
address these situations on a case-by-case basis. Where necessary, EPA 
will make a good cause finding to justify emergency rulemaking. See APA 
553(b).
(7) Notification Requirements
    In order to adequately track wastes that have been delisted, EPA is 
requiring that C-H provide a one-time notification to any state 
regulatory agency through which or to which the delisted waste is being 
carried. C-H must provide this notification 60 days before commencing 
this activity.

B. What happens if C-H violates the terms and conditions?

    If C-H violates the terms and conditions established in the 
exclusion, EPA will start procedures to withdraw the exclusion. Where 
there is an immediate threat to human health and the environment, EPA 
will evaluate the need for enforcement activities on a case-by-case 
basis. EPA expects C-H to conduct the appropriate waste analysis and 
comply with the criteria explained above in paragraph (1) of the 
exclusion.

V. Public Comments

A. How may I as an interested party submit comments?

    EPA is requesting public comments on this proposed decision. Please 
send three copies of your comments. Send two copies to Ben Banipal, 
Section Chief of the Corrective Action and Waste Minimization Section 
(6PD-C), Multimedia Planning and Permitting Division, Environmental 
Protection Agency (EPA), 1445 Ross Avenue, Dallas, Texas 75202. Send a 
third copy to Jackee Hardy, Waste Division, Texas Commission on 
Environmental Quality, P.O. Box 13087, Austin, TX 78711. Identify your 
comments at the top with this regulatory docket number: ``EPA-R06-RCRA-
2008-0457.'' You may submit your comments electronically to Youngmoo 
Kim at kim.youngmoo@epa.gov.
    You should submit requests for a hearing to Ben Banipal, Section 
Chief of the Corrective Action and Waste Minimization Section (6PD-C), 
Multimedia Planning and Permitting Division, U. S. Environmental 
Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202.

B. How may I review the docket or obtain copies of the proposed 
exclusion?

    You may review the RCRA regulatory docket for this proposed rule at 
the Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202. It is available for viewing in the EPA Freedom of 
Information Act Review Room from 9 a.m. to 4 p.m., Monday through 
Friday, excluding Federal holidays. Call (214) 665-6444 for 
appointments. The public may copy material from any regulatory docket 
at no cost for the first 100 pages, and at fifteen cents per page for 
additional copies.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this rule is

[[Page 54777]]

not of general applicability and therefore is not a regulatory action 
subject to review by the Office of Management and Budget (OMB). This 
rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.) because it applies to a particular facility only. Because this 
rule is of particular applicability relating to a particular facility, 
it is not subject to the regulatory flexibility provisions of the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or to sections 202, 
204, and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public 
Law 104-4). Because this rule will affect only a particular facility, 
it will not significantly or uniquely affect small governments, as 
specified in section 203 of UMRA. Because this rule will affect only a 
particular facility, this proposed rule does not have federalism 
implications. It will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132, 
``Federalism'' (64 FR 43255, August 10, 1999). Thus, Executive Order 
13132 does not apply to this rule. Similarly, because this rule will 
affect only a particular facility, this proposed rule does not have 
tribal implications, as specified in Executive Order 13175, 
``Consultation and Coordination with Indian Tribal Governments'' (65 FR 
67249, November 9, 2000). Thus, Executive Order 13175 does not apply to 
this rule. This rule also is not subject to Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant as defined in Executive Order 12866, and because the Agency 
does not have reason to believe the environmental health or safety 
risks addressed by this action present a disproportionate risk to 
children. The basis for this belief is that the Agency used the DRAS 
program, which considers health and safety risks to infants and 
children, to calculate the maximum allowable concentrations for this 
rule. This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)), because it is not 
a significant regulatory action under Executive Order 12866. This rule 
does not involve technical standards; thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. As required by section 3 of 
Executive Order 12988, ``Civil Justice Reform'' (61 FR 4729, February 
7, 1996), in issuing this rule, EPA has taken the necessary steps to 
eliminate drafting errors and ambiguity, minimize potential litigation, 
and provide a clear legal standard for affected conduct. The 
Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small 
Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report which includes a copy of the rule to 
each House of the Congress and to the Comptroller General of the United 
States. Section 804 exempts from section 801 the following types of 
rules (1) rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties (5 U.S.C. 804(3)). EPA is not 
required to submit a rule report regarding this action under section 
801 because this is a rule of particular applicability.

Lists of Subjects in 40 CFR Part 261

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

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

    Dated: August 28, 2008.
Bill Luthans,
Acting Director, Multimedia Planning and Permitting Division, EPA 
Region 6.

    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 1 of Appendix IX of part 261 add the following waste 
stream in alphabetical order by facility to read as follows:

Appendix IX to Part 261--Waste Excluded Under Sec. Sec.  260.20 and 
260.22

            Table 1--Waste Excluded From Non-Specific Sources
------------------------------------------------------------------------
           Facility                  Address         Waste description
------------------------------------------------------------------------
 
                              * * * * * * *
Cooper Crouse-Hinds...........  Amarillo , TX....  Wastewater Treatment
                                                    Sludge (EPA
                                                    Hazardous Waste No.
                                                    F006) generated at a
                                                    maximum annual rate
                                                    of 819 cubic yards
                                                    per calendar year
                                                    after [insert
                                                    publication date of
                                                    the final rule] will
                                                    be disposed in
                                                    Subtitle D landfill.
                                                    For the exclusion to
                                                    be valid, C-H must
                                                    implement a
                                                    verification testing
                                                    program that meets
                                                    the following
                                                    paragraphs:
                                                   (1) Delisting Levels:
                                                    All leachable
                                                    concentrations for
                                                    those constituents
                                                    must not exceed the
                                                    following levels (mg/
                                                    l for TCLP): Arsenic-
                                                    0.0759; Barium-100;
                                                    Cadmium-0.819;
                                                    Copper-216; Iron-
                                                    1.24; Manganese-145;
                                                    Nickel-119; Zinc-18;
                                                    Benzene-0.5.
                                                   (2) Waste Management:
                                                    (A) C-H must manage
                                                    as hazardous all
                                                    WWTP sludge
                                                    generated, until it
                                                    has completed
                                                    initial verification
                                                    testing described in
                                                    paragraph (3)(A) and
                                                    (B), as appropriate,
                                                    and valid analyses
                                                    show that
                                                    paragraph(1) is
                                                    satisfied.
                                                   (B) Levels of
                                                    constituents
                                                    measured in the
                                                    samples of the WWTP
                                                    sludge that do not
                                                    exceed the levels
                                                    set forth in
                                                    paragraph (1) are
                                                    non-hazardous. C-H
                                                    can manage and
                                                    dispose of the non-
                                                    hazardous WWTP
                                                    sludge according to
                                                    all applicable solid
                                                    waste regulations.

[[Page 54778]]

 
                                                   (C) If constituent
                                                    levels in a sample
                                                    exceed any of the
                                                    Delisting Levels set
                                                    in paragraph (1) C-H
                                                    can collect one
                                                    additional sample
                                                    and perform
                                                    expedited analyses
                                                    to verify if the
                                                    constituent exceeds
                                                    the delisting level.
                                                    If this sample
                                                    confirms the
                                                    exceedance, C-H
                                                    must, from that
                                                    point forward, treat
                                                    the waste as
                                                    hazardous until it
                                                    is demonstrated that
                                                    the waste again
                                                    meets the levels in
                                                    paragraph (1) C-H
                                                    must manage and
                                                    dispose of the waste
                                                    generated under
                                                    Subtitle C of RCRA
                                                    from the time that
                                                    it becomes aware of
                                                    any exceedance.
                                                   (D) Upon completion
                                                    of the verification
                                                    testing described in
                                                    paragraph 3(A) and
                                                    (B) as appropriate
                                                    and the transmittal
                                                    of the results to
                                                    EPA, and if the
                                                    testing results meet
                                                    the requirements of
                                                    paragraph (1), C-H
                                                    may proceed to
                                                    manage its WWTP
                                                    sludge as non-
                                                    hazardous waste. If
                                                    subsequent
                                                    Verification Testing
                                                    indicates an
                                                    exceedance of the
                                                    Delisting Levels in
                                                    paragraph (1), C-H
                                                    must manage the WWTP
                                                    sludge as a
                                                    hazardous waste
                                                    until two
                                                    consecutive
                                                    quarterly testing
                                                    samples show levels
                                                    below the Delisting
                                                    Levels in paragraph
                                                    (1).
                                                   (3) Verification
                                                    Testing
                                                    Requirements: C-H
                                                    must perform sample
                                                    collection and
                                                    analyses, including
                                                    quality control
                                                    procedures, using
                                                    appropriate methods.
                                                    As applicable to the
                                                    method-defined
                                                    parameters of
                                                    concern, analyses
                                                    requiring the use of
                                                    SW-846 methods
                                                    incorporated by
                                                    reference in 40 CFR
                                                    260.11 must be used
                                                    without
                                                    substitution. As
                                                    applicable, the SW-
                                                    846 methods might
                                                    include Methods
                                                    8260B, 1311/8260B,
                                                    8270C, 1311/8270C,
                                                    6010B. 7470, 9034A,
                                                    9012A, ASTMD-4982B,
                                                    ASTMD-5049, E413.2.
                                                    Methods must meet
                                                    Performance Based
                                                    Measurement System
                                                    Criteria in which
                                                    the Data Quality
                                                    Objectives are to
                                                    demonstrate that
                                                    representative
                                                    samples of C-H's
                                                    F006 sludge meet the
                                                    delisting levels in
                                                    paragraph (1). If
                                                    EPA judges the
                                                    process to be
                                                    effective under the
                                                    operating conditions
                                                    used during the
                                                    initial verification
                                                    testing, C-H may
                                                    replace the testing
                                                    required in
                                                    paragraph (3)(A)
                                                    with the testing
                                                    required in
                                                    paragraph (3)(B). C-
                                                    H Plant must
                                                    continue to test as
                                                    specified in
                                                    paragraph (3)(A)
                                                    until and unless
                                                    notified by EPA in
                                                    writing that testing
                                                    in paragraph (3)(A)
                                                    may be replaced by
                                                    paragraph (3)(B).
                                                   (A) Initial
                                                    Verification
                                                    Testing: After EPA
                                                    grants the final
                                                    exclusion, C-H must
                                                    do the following:
                                                   (i) Within 60 days of
                                                    this exclusions
                                                    becoming final,