Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Proposed Exclusion, 41720-41728 [2012-17272]
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Federal Register / Vol. 77, No. 136 / Monday, July 16, 2012 / Proposed Rules
13. Technical Standards
This proposed rule does not use
technical standards. Therefore, we did
not consider the use of voluntary
consensus standards.
14. Environment
We have analyzed this proposed rule
under Department of Homeland
Security Management Directive 023–01
and Commandant Instruction
M16475.lD, which guide the Coast
Guard in complying with the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f), and
have made a preliminary determination
that this action is one of a category of
actions that do not individually or
cumulatively have a significant effect on
the human environment.
This proposed rule involves the
establishment of an RNA. This proposed
rule is categorically excluded from
further review under paragraph 34(g) of
Figure 2–1 of the Commandant
Instruction. A preliminary
environmental analysis checklist
supporting this determination is
available in the docket where indicated
under ADDRESSES.
We seek any comments or information
that may lead to the discovery of a
significant environmental impact from
this proposed rule.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures,
Waterways.
For the reasons discussed in the
preamble, the Coast Guard proposes to
amend 33 CFR part 165 as follows:
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
1. The authority citation for part 165
continues to read as follows:
Authority: 33 U.S.C. 1231; 46 U.S.C.
Chapter 701, 3306, 3703; 50 U.S.C. 191, 195;
33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5;
Pub. L. 107–295, 116 Stat. 2064; Department
of Homeland Security Delegation No. 0170.1.
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2. Add § 165.T01–0394 to read as
follows:
§ 165.T01–0394 Regulated Navigation
Area; Original Waldo-Hancock Bridge
Removal, Penobscot River, Bucksport, ME.
(a) Location. The following area is a
Regulated Navigation Area (RNA): All
navigable waters of Penobscot River
between Bucksport, ME and Verona,
ME, from surface to bottom, within a
300 yard radius of position 44°33′38″ N,
068°48′05″ W.
(b) Regulations.
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(1) The general regulations contained
in 33 CFR 165.10, 165.11, and 165.13
apply within the RNA.
(2) In accordance with the general
regulations, entry into or movement
within this zone, during periods of
enforcement, is prohibited unless
authorized by the Captain of the Port
Sector Northern New England (COTP).
(3) Persons and vessels may request
permission to enter the RNA during
periods of enforcement by contacting
the COTP or the COTP’s on-scene
representative on VHF–16 or via phone
at 207–767–0303.
(4) During periods of enforcement, a
speed limit of five knots will be in effect
within the regulated area and all vessels
must proceed through the area with
caution and operate in such a manner as
to produce no wake.
(5) During periods of enforcement,
vessels must comply with all directions
given to them by the COTP or the
COTP’s on-scene representative. The
‘‘on-scene representative’’ of the COTP
is any Coast Guard commissioned,
warrant or petty officer who has been
designated by the COTP to act on the
COTP’s behalf. The on-scene
representative may be on a Coast Guard
vessel; Maine State Police, Maine
Marine Patrol or other designated craft;
or may be on shore and communicating
with vessels via VHF–FM radio or
loudhailer. Members of the Coast Guard
Auxiliary may be present to inform
vessel operators of this regulation.
(6) During periods of enforcement,
upon being hailed by a U.S. Coast Guard
vessel by siren, radio, flashing light or
other means, the operator of the vessel
must proceed as directed.
(7) All other relevant regulations,
including but not limited to the Rules of
the Road (33 CFR part 84—subchapter
E, Inland Navigational Rules) remain in
effect within the regulated area and
must be strictly followed at all times.
(c) Enforcement Period. This
regulation is enforceable 24 hours a day
from 5 a.m. on September 1, 2012 until
11:59 p.m. on June 30, 2013.
(1) Prior to commencing or
suspending enforcement of this
regulation, the COTP will give notice by
appropriate means to inform the
affected segments of the public, to
include dates and times. Such means of
notification will include, but are not
limited to, Broadcast Notice to Mariners
and Local Notice to Mariners.
(2) Violations of this RNA may be
reported to the COTP at 207–767–0303
or on VHF–Channel 16.
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Dated: June 29, 2012.
D.B. Abel,
Rear Admiral, U.S. Coast Guard Commander,
First Coast Guard District.
[FR Doc. 2012–17221 Filed 7–13–12; 8:45 am]
BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
[EPA–R01–RCRA–2012–0447; FRL–9699–4]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste; Proposed Exclusion
Environmental Protection
Agency (EPA).
ACTION: Proposed rule and request for
comment.
AGENCY:
The EPA (also, ‘‘the Agency’’
or ‘‘we’’ in this preamble) is proposing
to grant a petition submitted by
International Business Machines
Corporation (IBM), in Essex Junction,
Vermont to exclude (or ‘‘delist’’) up to
3,150 cubic yards per calendar year of
F006 wastewater treatment sludge
generated by IBM’s Industrial Waste
Treatment System from the list of
hazardous wastes.
The Agency has tentatively decided to
grant the petition based on an
evaluation of waste-specific information
provided by IBM. This proposed
decision, if finalized, would
conditionally exclude the petitioned
waste from the requirements of
hazardous waste regulations under the
Resource Conservation and Recovery
Act (RCRA).
This exclusion would be valid only
when the wastewater treatment sludge
is disposed of in a Subtitle D landfill
which is permitted, licensed, or
otherwise authorized by a State to
manage industrial solid waste.
If finalized, EPA would conclude that
IBM’s petitioned waste is nonhazardous
with respect to the original listing
criteria and that there are no other
factors which would cause the waste to
be hazardous.
DATES: Comments must be received on
or before August 15, 2012. EPA will
stamp comments received after the close
of the comment period as late. These
late comments may not be considered in
formulating a final decision. Any person
may request a hearing on the proposed
decision by filing a request to EPA by
July 31, 2012. The request must contain
the information prescribed in 40 CFR
260.20(d).
SUMMARY:
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Federal Register / Vol. 77, No. 136 / Monday, July 16, 2012 / Proposed Rules
Submit your comments,
identified by Docket ID No. EPA–R01–
RCRA–2012–0447 by one of the
following methods:
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. Email: leitch.sharon@epa.gov.
3. Fax: (617) 918–0647, to the
attention of Sharon Leitch.
4. Mail: Sharon Leitch, RCRA Waste
Management and UST Section, Office of
Site Remediation and Restoration
(OSRR07–1), US EPA Region 1, 5 Post
Office Square, Suite 100, Boston, MA
02109–3912.
5. Hand Delivery: Sharon Leitch,
RCRA Waste Management and UST
Section, Office of Site Remediation and
Restoration (OSRR07–1), U.S. EPA
Region 1, 5 Post Office Square, 7th floor,
Boston, MA 02109–3912. Such
deliveries are only accepted during
normal hours of operation, and special
arrangements should be made for
deliveries of boxed information. Please
contact Sharon Leitch at (617) 918–
1647.
Instructions: Direct your comments to
Docket ID No. EPA–R01–RCRA–2012–
0447. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
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 through
www.regulations.gov or email
information that you consider to be CBI
or otherwise protected. The
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 email comment directly
to EPA without going through
www.regulations.gov, your email
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.
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ADDRESSES:
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Docket: All documents in the docket
are listed in the 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 form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hard copy at
the EPA Region 1 Library, 5 Post Office
Square, 1st floor, Boston, MA 02109–
3912; by appointment only; tel: (617)
918–1990.
FOR FURTHER INFORMATION CONTACT:
Sharon Leitch, RCRA Waste
Management and UST Section, Office of
Site Remediation and Restoration, (Mail
Code: OSRR07–1), EPA Region 1, 5 Post
Office Square, Suite 100, Boston, MA
02109–3912; telephone number: (617)
918–1647; fax number (617) 918–0647;
email address: leitch.sharon@epa.gov.
SUPPLEMENTARY INFORMATION: The
information in this section is organized
as follows:
I. Overview Information
II. Background
A. What is a listed waste?
B. What is a delisting petition?
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 IBM petition EPA to
delist?
B. How does IBM generate the waste?
C. How did IBM sample and analyze the
petitioned waste?
D. What were the results of IBM’s analysis
of the waste?
E. How did EPA evaluate the risk of
delisting this waste?
F. What did EPA conclude about IBM’s
waste?
IV. Conditions for Exclusion
A. When would EPA finalize the proposed
delisting exclusion?
B. How will IBM manage the waste if it is
delisted?
C. With what conditions must the
petitioner comply?
D. What happens if IBM violates the terms
and conditions of the exclusion?
V. How would this action affect the states?
VI. Statutory and Executive Order Reviews
I. Overview Information
The EPA is proposing to grant a
petition submitted by International
Business Machines Corporation (IBM)
located in Essex Junction, Vermont to
exclude or delist an annual volume of
3,150 cubic yards of F006 wastewater
treatment sludge from the lists of
hazardous waste set forth in Title 40 of
the Code of Federal Regulations (40
CFR) 261.31. IBM claims that the
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petitioned waste does not meet the
criteria for which EPA listed it, and that
there are no additional constituents or
factors which could cause the waste to
be hazardous.
Based on the EPA’s evaluation
described in section III, in which we
reviewed the description of the process
which generates the waste and the
analytical data submitted by IBM, we
agree with the petitioner that the waste
is nonhazardous. We believe that the
petitioned waste does not meet the
criteria for which the waste was listed,
and that there are no other factors which
might cause the waste to be hazardous.
II. Background
A. What is a listed waste?
The EPA published an amended list
of hazardous wastes from nonspecific
and specific sources on January 16,
1981, as part of its final and interim
final regulations implementing § 3001 of
Resource Conservation and Recovery
Act (RCRA). The EPA has amended this
list several times and publishes it in 40
CFR 261.31 and 261.32.
We list these wastes as hazardous
because: (1) They 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) or (2) they meet the criteria
for listing contained in § 261.11(a)(2) or
(3).
B. What is a delisting petition?
Individual waste streams may vary
depending on raw materials, industrial
processes, and other factors. Thus,
while a waste described in the
regulations generally is hazardous, a
specific waste from an individual
facility meeting the listing description
may not be.
The procedure to exclude or delist a
waste in 40 CFR 260.20 and 260.22
allows a person, or a facility, to submit
a petition to the EPA or to an authorized
state demonstrating that a specific waste
from a particular generating facility is
not hazardous.
In a delisting petition, the petitioner
must show that a waste does not meet
any of the criteria for listed wastes in 40
CFR 261.11 and that the waste does not
exhibit any of the hazardous waste
characteristics of ignitability, reactivity,
corrosivity, or toxicity. The petitioner
must present sufficient information for
the Agency to decide whether any
factors in addition to those for which
the waste was listed warrant retaining it
as a hazardous waste. (See § 260.22, 42
United States Code—U.S.C.—6921(f)
and the background documents for the
listed wastes.)
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If a delisting petition is granted, the
generator remains obligated under
RCRA to confirm that the waste remains
nonhazardous.
C. What factors must EPA consider in
deciding whether to grant a delisting
petition?
In reviewing this petition, we
considered the original listing criteria
and the additional factors required by
the Hazardous and Solid Waste
Amendments of 1984 (HSWA). See
§ 222 of HSWA, 42 U.S.C. 6921(f), and
40 CFR 260.22(d)(2)–(4). We evaluated
the petitioned waste against the listing
criteria and factors cited in
§ 261.11(a)(2) and (3).
Besides considering the criteria in 40
CFR 260.22(a), 261.11(a)(2) and (3), 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 we listed the waste, if
these additional factors could cause the
waste to be hazardous.
Our tentative decision to delist waste
from IBM’s facility is based on our
evaluation of the waste for factors or
criteria which could cause the waste to
be hazardous. These factors included:
(1) Whether the waste is considered
acutely toxic; (2) the toxicity of the
constituents; (3) the concentration of the
constituents in the waste; (4) the
tendency of the constituents to migrate
and to bioaccumulate; (5) the
persistence in the environment of any
constituents once released from the
waste; (6) plausible and specific types of
management of the petitioned waste; (7)
the quantity of waste produced; and (8)
waste variability.
EPA must also consider as hazardous
wastes, mixtures containing listed
hazardous wastes and wastes derived
from treating, storing, or disposing of
listed hazardous waste. See 40 CFR
261.3(a)(2)(iv) and (c)(2)(i), called the
‘‘mixture’’ and ‘‘derived-from’’ rules,
respectively. Mixture and derived-from
wastes are also eligible for exclusion but
remain hazardous until excluded.
III. EPA’s Evaluation of the Waste
Information and Data
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A. What waste did IBM petition EPA to
delist?
On July 11, 2008, IBM petitioned EPA
to exclude from the list of hazardous
wastes contained in 40 CFR 261.31,
F006 Industrial Waste Treatment Plant
(IWTP) sludge generated from its facility
located in Essex Junction, Vermont.
F006 is defined in § 261.31 as
‘‘Wastewater treatment sludges from
electroplating operations * * *’’ IBM
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claims that the petitioned waste does
not meet the criteria for which F006 was
listed (i.e., cadmium, hexavalent
chromium, nickel and complexed
cyanide) and that there are no other
factors which would cause the waste to
be hazardous. Specifically, the petition
request is for a standard exclusion for
3,150 cubic yards per calendar year of
WWTP sludge.
B. How does IBM generate the waste?
The sludge IBM generates is from the
combination of three separate
wastewater treatment processes at the
facility. Those processes include: the
industrial waste treatment plant (IWTP)
process; the biological wastewater
treatment plant (BWTP) process; and the
chemical mechanical polishing (CMP)
microfiltration process. The sludge is
primarily sludge from the IWTP, this
waste stream receives discharges from
chemical wafer and mask manufacturing
cleaning, etching, and stripping,
photolithography waste, chemical
etching and mechanical polishing, air
abatement scrubbers, effluent from the
CMP and BWTP treatment systems,
wafer rinse, and facility maintenance
operations. The industrial wastewaters
also include rinse waters from copper
electroplating manufacturing operations
and wastewaters from acid etching of a
thin platinum film and the subsequent
rinse step (the copper and platinum
wastewaters total less the 0.1 percent of
the overall wastewater treated). The
biological waste streams include
sanitary wastewaters, dilute organic
waste (DOW) and concentrated waste
(CW). The DOW waste stream receives
discharges from chemical wafer
cleaning and stripping, Deep UltraViolet photolithography waste, air
abatement adsorber decant waters, and
facility chilled water and boiler
maintenance operations. The CW stream
consists of waste from semiconductor
and mask manufacturing
photolithography develop steps,
chemical wafer cleaning, etching, and
stripping operations, and parts
decontamination. The CMP
microfiltration waste stream consists of
wastewater from chemical/mechanical
polishing tools used in semiconductor
manufacturing. The CMP wastewaters
also include copper sulfate plating bath
solutions (totaling less than 0.1 percent
of the wastewater treated through the
CMP system). The sludges from these
three processes are combined,
thickened/conditioned, and pressed to
generate the F006 waste stream.
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C. How did IBM sample and analyze the
petitioned waste?
To support its petition, IBM
submitted: (1) Facility information on
production processes and waste
generation processes; (2) Historical
sampling data of the IWTP sludge; (3)
Analytical results from four samples for
total concentrations for volatiles (SW–
846 Method 8260B), semi volatiles (SW–
846 Method 8270C) and metals (SW–
846 Method 6010B except for mercury—
SW–846 Method 7471A and selenium—
SW–846 Method 7010), for compounds
of concern (COCs); and (4) Analytical
results from four samples for Toxicity
Characteristic Leaching Procedure
(TCLP) extract values for volatiles (SW–
846 Method 8260B), semi volatiles (SW–
846 Method 8270C) and metals (SW–
846 Method 6010B except for mercury—
SW–846 Method 7470 and selenium—
SM 3113B) for COCs.
IBM generated the sampling data used
in the Delisting Risk Assessment
Software (DRAS) under a Quality
Assurance Project Plan (QAPP) that was
approved by EPA, Region 1 on January
27, 2011. Therefore, EPA believes that
the sampling procedures used by IBM
satisfy EPA’s criteria for collecting
representative samples of the F006
waste.
D. What were the results of IBM’s
analysis of the waste?
EPA believes that IBM’s analytical
characterization provides a reasonable
basis to grant IBM’s petition for an
exclusion of the wastewater treatment
sludge. Furthermore, EPA believes the
data submitted in support of the petition
show that the sludge is non-hazardous.
Analytical data for the wastewater
treatment sludge samples were used in
the DRAS to develop delisting levels.
The data summaries for the total
detected constituents are as follows:
(mg/kg) Arsenic—7.5; Barium—39;
Chromium—290; Lead—5.6; Mercury—
0.067; and Nickel—49. The data
summary for the TCLP detected
constituents are as follows: (mg/l)
Nickel—0.11 (all other constituents
were non-detect). Note that the above
levels represent the highest constituent
concentration found in any one sample.
All analytical data for the volatiles and
semi-volatiles samples were non-detect.
E. How did EPA evaluate the risk of
delisting this waste?
For this delisting determination, we
assumed that the waste would be
disposed in a Subtitle D landfill and we
considered transport of waste
constituents through groundwater,
surface water and air. We evaluated
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IBM’s petitioned waste using the
Agency’s Delisting Risk Assessment
Software (DRAS) described in 65 FR
58015 (September 27, 2000), 65 FR
75637 (December 4, 2000), and 73 FR
28768 (May 19, 2008) to predict the
maximum allowable concentrations of
hazardous constituents that may be
released from the petitioned waste after
disposal and determined the potential
impact of the disposal of IBM’s
petitioned waste on human health and
the environment. To predict the
potential for release to groundwater
from landfilled wastes and subsequent
routes of exposure to a receptor, the
DRAS uses dilution attenuation factors
derived from EPA’s Composite Model
for Leachate Migration and
Transformation Products (EPACMTP).
From a release to groundwater, the
DRAS considers routes of exposure to a
human receptor of ingestion of
contaminated groundwater, inhalation
from groundwater while showering and
dermal contact from groundwater while
bathing.
From a release to surface water by
erosion of waste from an open landfill
into stormwater run-off, DRAS evaluates
the exposure to a human receptor by
fish ingestion and ingestion of drinking
water. From a release of waste particles
and volatile emissions to air from the
surface of an open landfill, DRAS
considers routes of exposure of
inhalation of volatile constituents,
inhalation of particles, and air
deposition of particles on residential
soil and subsequent ingestion of the
contaminated soil by a child. The
technical support document and the
user’s guide to DRAS are included in
the docket.
At a target cancer risk of 1 × 10¥5 and
a target hazard quotient of 1.0, the
DRAS program determined maximum
allowable concentrations for each
constituent in both the waste and the
leachate at an annual waste volume of
3,150 cubic yards.
We used the maximum estimated
annual waste volume and the maximum
reported total and TCLP leachate
concentrations as inputs to estimate the
constituent concentrations in the
groundwater, soil, surface water or air.
If, using an appropriate analytical
method, a constituent was not detected
in any sample, it was considered not to
be present in the waste.
F. What did EPA conclude about IBM’s
waste?
The maximum reported
concentrations of the hazardous
constituents found in this waste are
presented above in section D. The
maximum allowable constituent
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concentrations as determined by the
DRAS are as follows: (mg/l) Nickel—
32.4. The maximum allowable
constituent concentrations for the
remaining constituents are based on the
toxicity characteristic in 40 CFR 261
Subpart C: (mg/l) Arsenic—5.0;
Barium—100.0; Cadmium—1.0;
Chromium—5.0; Lead—5.0; and,
Mercury—0.2. The concentrations of all
constituents in both the waste and the
leachate are below the allowable
concentrations. We, therefore, conclude
that IBM’s wastewater treatment sludge
is not a substantial or potential hazard
to human health and the environment
when disposed of in a Subtitle D
landfill.
We, therefore, propose to grant an
exclusion for this waste. If this
exclusion is finalized, IBM must dispose
of this waste in a Subtitle D landfill
permitted, licensed or otherwise
authorized by a state, and will remain
obligated to verify that the waste meets
the allowable concentrations set forth
here. IBM must also continue to
determine whether the waste is
identified in subpart C of 40 CFR
pursuant to § 261.11(c).
IV. Conditions for Exclusion
A. When would EPA finalize the
proposed delisting exclusion?
HSWA specifically requires the EPA
to provide notice and an opportunity for
comment before granting or denying a
final exclusion. Thus, EPA will not
make a final decision or grant an
exclusion until it has addressed all
timely public comments on today’s
proposal, including any at public
hearings.
Since this rule would reduce the
existing requirements for persons
generating hazardous wastes, the
regulated community does not need a
six-month period to come into
compliance in accordance with § 3010
of RCRA as amended by HSWA.
B. How will IBM manage the waste if it
is delisted?
If the petitioned waste is delisted,
IBM must dispose of it in a Subtitle D
landfill which is permitted, licensed, or
otherwise authorized by a state to
manage industrial waste.
C. With what conditions must the
petitioner comply?
The petitioner, IBM, must comply
with the conditions which will be 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 IBM must test
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the WWTP sludge, below which these
wastes would be considered nonhazardous. EPA selected the set of
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 constituents list from the
composition of the waste, descriptions
of IBM’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 IBM 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. Unless
and until EPA concurs that the initial
verification data collected under
paragraph (3) supports the data
provided 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 waste cannot begin
until two quarters of verification
sampling is completed and an approval
is obtained from EPA.
(3) Verification Testing Requirements:
IBM must implement a 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.
The first part of the verification testing
program is the quarterly testing of
representative samples of the WWTP
sludge during the first year of waste
generation (two quarters prior to
obtaining written EPA approval and two
additional quarters). The proposed
testing would verify that IBM operates
a treatment facility where the
constituent concentrations of the WWTP
sludge do not exhibit unacceptable
temporal and spatial levels of toxic
constituents. IBM would begin quarterly
sampling 30 days after the final
exclusion as described in paragraph
(3)(A) of the exclusion language.
Consequently this program will ensure
that the sludge is evaluated in terms of
variation in constituent concentrations
in the waste over time. Following two
consecutive quarters of sampling where
the levels of constituents do not exceed
the levels in paragraph (1), IBM can
then manage and dispose of the sludge
as non-hazardous in accordance with all
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applicable solid waste regulations
following EPA approval. If EPA
determines that the data collected under
this paragraph does not support the data
provided in the petition, the exclusion
will not cover the generated wastes. IBM
must then prove through a new
demonstration that its waste meets the
conditions of the exclusion.
The second part of the verification
testing program is the annual testing of
representative samples of the WWTP
sludge, per paragraph (3)(B) of the
exclusion language. To confirm that the
characteristics of the waste do not
change significantly over time, IBM
must continue to analyze a
representative sample of the waste on an
annual basis. Annual testing requires
analyzing the full list of constituents in
paragraph (1) of the exclusion language.
If operating conditions change as
described in paragraph (4) of the
exclusion language, IBM must reinstate
all testing in paragraph (1) of the
exclusion language. IBM must then
prove through a new demonstration that
its waste meets the conditions of the
exclusion. If the annual testing of the
waste does not meet the delisting
requirements in paragraph (1), IBM
must notify EPA according to the
requirements in paragraph (6) of the
exclusion language. The facility must
provide sampling results that support
the rationale that the delisting exclusion
should not be withdrawn.
(4) Changes in Operating Conditions:
Paragraph (4) of the exclusion
language would allow IBM the
flexibility of modifying its processes (for
example, changes in equipment or
operating conditions). However, if
significant changes to the manufacturing
or treatment process described in the
petition, or the chemicals used in the
manufacturing or treatment process are
made, then IBM must prove that the
modified process(es)/chemicals will not
affect the composition or type of waste
generated and must request approval
from EPA. EPA will determine if these
changes will result in additional COCs.
IBM must manage wastes generated
during the new process demonstration
as hazardous waste until it has obtained
written approval from EPA and
paragraph (3) of the exclusion language
is satisfied.
(5) Data Submittals and
Recordkeeping:
To provide appropriate
documentation that IBM’s WWTP
sludge is meeting the delisting levels,
IBM must submit reports to EPA as
specified in the conditions, and must
compile, summarize, and keep delisting
records on-site for a minimum of five
years. It must keep all analytical data
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obtained through paragraph (3) of the
exclusion language including quality
control information for five years.
Paragraph (5) of the exclusion language
requires that IBM furnish the data upon
request for inspection by any employee
or representative of EPA or the State of
Vermont.
If the proposed exclusion is made
final, it will apply only to 3,150 cubic
yards per calendar year of wastewater
treatment sludge generated at IBM after
successful verification testing.
EPA would require IBM to file a new
delisting petition under the following
circumstances:
(a) If it generates waste volumes
greater than 3,150 cubic yards per
calendar year of WWTP sludge. IBM
must manage these greater volumes as
hazardous unless and until EPA grants
a new exclusion.
EPA may review and approve changes
in writing or alternatively may require
IBM to file a new delisting petition
under any of the following
circumstances:
(b) If it significantly alters the
wastewater treatment process;
(c) If it significantly changes from the
current manufacturing process(es)
described in the International Business
Machines petition; or
(d) If it makes any changes that could
affect the composition or type of waste
generated such that the changes would
cause any of the constituents in
paragraph (1) of the exclusion language
to potentially be above the delisting
levels or would introduce any new
constituents into the waste.
(6) Reopener:
The purpose of paragraph (6) of the
exclusion language is to require IBM 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. 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 IBM
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 § 268.6.
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EPA believes it has the authority
under RCRA and the Administrative
Procedures Act (APA), 5 U.S.C. 551
(1978) et seq., to 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 section 553(b).
(7) Notification Requirements:
In order to adequately track wastes
that have been delisted, EPA is
requiring that IBM provide a one-time
written notification to any state
regulatory agency through which or to
which the delisted waste is being
transported. IBM must provide this
notification 60 days before commencing
this activity. In addition to providing
this notification, IBM is advised to
verify with each state the status of EPA’s
delisting decision under state law (see
the discussion in Section V. for
specifics).
D. What happens if IBM violates the
terms and conditions of the exclusion?
If IBM violates the terms and
conditions established in the exclusion,
the wastes in question would not be
exempt from Subtitle C since this is a
conditional exclusion, and thus they
would be subject to hazardous waste
management requirements. EPA also
could then initiate 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 IBM to
conduct the appropriate waste analysis
and comply with the criteria explained
above in paragraph (1) of the exclusion.
V. How would this action affect the
states?
EPA is issuing this exclusion under
the Federal RCRA delisting program.
Thus, upon the exclusion being
finalized, the wastes covered will be
removed from Subtitle C control under
the Federal RCRA program. This will
mean, first, that the wastes will be
delisted in any State or territory where
the EPA is directly administering the
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RCRA program (e.g., Iowa, Indian
Country). However, whether the wastes
will be delisted in States which have
been authorized to administer the RCRA
program will vary depending upon the
authorization status of the States and
the particular requirements regarding
delisted wastes in the various States.
While Vermont has been authorized
to generally administer the Federal
RCRA program, it has not sought or
obtained authorization to delist Federal
listed wastes. See 58 FR 26243 (May 3,
1993). Instead, the Vermont Hazardous
Waste Regulation section 7–217(c)
specifies that ‘‘the Administrator of EPA
shall retain the authority to exclude
such wastes.’’ By letter dated April 12,
2012, the Vermont Department of
Environmental Conservation has
confirmed that Vermont interprets this
regulation to mean that upon the EPA
making a delisting determination
(regarding a federally regulated waste),
the delisting determination takes effect
within that State. Thus, this delisting
determination will apply within
Vermont with no further action required
by the State.
Like Vermont, some other generally
authorized States have not received
authorization for delisting. Thus, the
EPA makes delisting determinations for
such States. However, RCRA allows
states to impose their own regulatory
requirements that are more stringent
than EPA’s, under § 3009 of RCRA.
These more stringent requirements may
include a provision that prohibits a
federally issued exclusion from taking
effect in the state, or that requires a
State concurrence before the Federal
exclusion takes effect, or that allows the
State to add conditions to any Federal
exclusion. We urge the petitioner to
contact the state regulatory authority in
each State to or through which it may
wish to ship its wastes to establish the
status of its wastes under the state’s
laws.
EPA has also authorized some states
to administer a delisting program in
place of the Federal program, that is, to
make state delisting decisions. In such
states, the state delisting requirements
operate in lieu of the Federal delisting
requirements. Therefore, this exclusion
does not apply in those authorized
states unless the state makes the rule
part of its authorized program. If IBM
transports the federally excluded waste
to or manages the waste in any state
with delisting authorization, IBM must
obtain a delisting authorization from
that state before it can manage the waste
as non-hazardous in that state.
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VI. Statutory and Executive Order
Reviews
Under Executive Order 12866,
‘‘Regulatory Planning and Review ’’ (58
FR 51735, October 4, 1993), this rule is
not of general applicability and
therefore, is not a regulatory action
subject to review by the Office of
Management and Budget (OMB). This
rule does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.) because it
applies to a particular facility only.
Because this rule is of particular
applicability relating to a particular
facility, it is not subject to the regulatory
flexibility provisions of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), or
to §§ 202, 204, and 205 of the Unfunded
Mandates Reform Act of 1995 (UMRA)
(Pub. L. 104–4). Because this rule will
affect only a particular facility, it will
not significantly or uniquely affect small
governments, as specified in § 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 DRAS, which considers health and
safety risks to children, to calculate the
maximum allowable concentrations for
this rule. This rule is not subject to
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355 (May
22, 2001)), because it is not a significant
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41725
regulatory action under Executive Order
12866. This rule does not involve
technical standards; thus, the
requirements of § 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not
apply. As required by § 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 § 801 the following types
of rules: (1) Rules of particular
applicability; (2) rules relating to agency
management or personnel; and (3) rules
of agency organization, procedure, or
practice that do not substantially affect
the rights or obligations of non-agency
parties (5 U.S.C. 804(3)). EPA is not
required to submit a rule report
regarding today’s action under § 801
because this is a rule of particular
applicability. Executive Order (EO)
12898 (59 FR 7629 (Feb. 16, 1994))
establishes Federal executive policy on
environmental justice. Its main
provision directs Federal agencies, to
the greatest extent practicable and
permitted by law, to make
environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this
proposed rule will not have
disproportionately high and adverse
human health or environmental effects
on minority or low-income populations
because it does not affect the level of
protection provided to human health or
the environment. The Agency’s risk
assessment did not identify risks from
management of this material in a
Subtitle D landfill. Therefore, EPA
believes that any populations in
proximity of the landfills used by this
facility should not be adversely affected
by common waste management
practices for this delisted waste.
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List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous
waste, Recycling, Reporting and
recordkeeping requirements.
Authority: § 3001(f) RCRA, 42 U.S.C.
6921(f).
Dated: June 20, 2012.
H. Curtis Spalding,
Regional Administrator, EPA Region 1.
Authority: 42 U.S.C. 6905, 6912(a), 6921,
6922, 6924(y) and 6938.
For the reasons set out in the
preamble, EPA proposes to amend 40
CFR part 261 as follows:
2. Amend Table 1 of Appendix IX to
part 261 by adding the following waste
stream in alphabetical order by facility
‘‘IBM Corporation’’ to read as follows:
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
Appendix IX to Part 261—Wastes
Excluded Under §§ 260.20 and 260.22
1. The authority citation for part 261
continues to read as follows:
TABLE 1—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES
Facility
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IBM Corporation ..........
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Waste description
*
*
*
*
*
*
Essex Junction, VT ..... Wastewater Treatment Sludge (Hazardous Waste No. F006) generated at a maximum annual
rate of 3,150 cubic yards per calendar year and disposed of in a Subtitle D Landfill which
is licensed, permitted, or otherwise authorized by a state to accept the delisted wastewater
treatment sludge.
IBM must implement a testing program that meets the following conditions for the exclusion
to be valid:
1. Delisting Levels: All leachable concentrations for the following constituents must not exceed the following levels (mg/L for TCLP): Arsenic—5.0; Barium—100.0; Cadmium—1.0;
Chromium—5.0; Lead—5.0; Mercury 0.2; and, Nickel—32.4.
2. Waste Handling and Holding: (A)IBM must manage as hazardous all WWTP sludge generated until it has completed initial verification testing described in paragraph (3)(A) and
valid analyses show that paragraph (1) is satisfied and written approval is received by
EPA. (B) Levels of constituents measured in the samples of the WWTP sludge that do not
exceed the levels set forth in paragraph (1) for two consecutive quarterly sampling events
are non-hazardous. After approval is received from EPA, IBM can manage and dispose of
the non-hazardous WWTP sludge according to all applicable solid waste regulations. (C)
Not withstanding having received the initial approval from EPA, if constituent levels in a
later sample exceed any of the Delisting Levels set in paragraph (1), from that point forward, IBM must treat all the waste covered by this exclusion as hazardous until it is demonstrated that the waste again meets the levels in paragraph (1). IBM must manage and
dispose of the waste generated under Subtitle C of RCRA from the time that it becomes
aware of any exceedance.
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41727
TABLE 1—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES—Continued
Facility
Address
Waste description
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3. Verification Testing Requirements: IBM must perform sample collection and analyses in
accordance with the approved Quality Assurance Project Plan dated January 27, 2011. All
samples shall be representative composite samples according to 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 0010, 0011, 0020,
0023A, 0030, 0031, 0040, 0050, 0051, 0060, 0061, 1010A, 1020B, 1110A, 1310B, 1311,
1312, 1320, 1330A, 9010C, 9012B, 9040C, 9045D, 9060A, 9070A (uses EPA Method
1664, Rev. A), 9071B, and 9095B. Methods must meet Performance Based Measurement
System Criteria in which the Data Quality Objectives are to demonstrate that samples of
the IBM sludge are representative for all constituents listed in paragraph (1). To verify that
the waste does not exceed the specified delisting concentrations, for one year after the
final exclusion is granted, IBM must perform quarterly analytical testing by sampling and
analyzing the WWTP sludge as follows: (A) Quarterly Testing: (i) Collect two representative
composite samples of the WWTP sludge at quarterly intervals after EPA grants the final
exclusion. The first composite samples must be taken within 30 days after EPA grants the
final approval. The second set of samples must be taken at least 30 days after the first set.
(ii) Analyze the samples for all constituents listed in paragraph (1). Any waste regarding
which a composite sample is taken that exceeds the delisting levels listed in paragraph (1)
for the sludge must be disposed as hazardous waste in accordance with the applicable
hazardous waste requirements from the time that IBM becomes aware of any exceedance.
(iii) Within thirty (30) days after taking each quarterly sample, IBM will report its analytical
test data to EPA. If levels of constituents measured in the samples of the sludge do not exceed the levels set forth in paragraph (1) of this exclusion for two consecutive quarters,
and EPA concurs with those findings, IBM can manage and dispose the non-hazardous
sludge according to all applicable solid waste regulations. (B) Annual Testing: (i) If IBM
completes the quarterly testing specified in paragraph (3) above and no sample contains a
constituent at a level which exceeds the limits set forth in paragraph (1), IBM may begin
annual testing as follows: IBM must test two representative composite samples of the
wastewater treatment sludge (following the same protocols as specified for quarterly sampling, above) for all constituents listed in paragraph (1) at least once per calendar year. (ii)
The samples for the annual testing taken for the second and subsequent annual testing
events shall be taken within the same calendar month as the first annual sample taken. (iii)
IBM shall submit an annual testing report to EPA with its annual test results, within thirty
(30) days after taking each annual sample. The annual testing report also shall include the
total amount of waste in cubic yards disposed during the calendar year.
4. Changes in Operating Conditions: If IBM significantly changes the manufacturing or treatment process described in the petition, or the chemicals used in the manufacturing or treatment process, it must notify the EPA in writing and may no longer handle the wastes generated from the new process as non-hazardous unless and until the wastes are shown to
meet the delisting levels set in paragraph(1), IBM demonstrates that no new hazardous
constituents listed in appendix VIII of part 261 have been introduced, and IBM has received written approval from EPA to manage the wastes from the new process under this
exclusion. While the EPA may provide written approval of certain changes, if there are
changes that the EPA determines are highly significant, the EPA may instead require IBM
to file a new delisting petition.
5. Data Submittals and Recordkeeping: IBM must submit the information described below. If
IBM fails to submit the required data within the specified time or maintain the required
records on-site for the specified time, EPA, at its discretion, will consider this sufficient
basis to reopen the exclusion as described in paragraph (6). IBM must: (A) Submit the
data obtained through paragraph (3) to the Chief, RCRA Waste Management & UST Section, U.S. EPA Region 1, (OSRR07–1), 5 Post Office Square, Suite 100, Boston, MA
02109–3912, within the time specified. All supporting data can be submitted on CD–ROM
or some comparable electronic media; (B) Compile, summarize, and maintain on site for a
minimum of five years and make available for inspection records of operating conditions,
including monthly and annual volumes of WWTP sludge generated, analytical data, including quality control information and, copies of the notification(s) required in paragraph (7);
(C) Submit with all data a signed copy of the certification statement in 40 CFR
260.22(i)(12).
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TABLE 1—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES—Continued
Facility
Address
Waste description
6. Reopener Language: (A) If, anytime after disposal of the delisted waste, IBM possesses or
is otherwise made aware of any environmental data (including but not limited to leachate
data or groundwater monitoring data) or any other relevant data to the delisted waste indicating that any constituent is at a concentration in the leachate higher than the specified
delisting concentration, then IBM must report such data, in writing, to the Regional Administrator and to the Vermont Agency of Natural Resources Secretary within 10 days of first
possessing or being made aware of that data. (B) Based on the information described in
paragraph (A) and any other information received from any source, the Regional Administrator will make a preliminary determination as to whether the reported information requires
Agency action to protect human health or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate response necessary to protect
human health and the environment. (C) If the Regional Administrator determines that the
reported information does require Agency action, the Regional Administrator will notify IBM
in writing of the actions the Regional Administrator believes are necessary to protect
human health and the environment. The notice shall include a statement of the proposed
action and a statement providing IBM with an opportunity to present information as to why
the proposed Agency action is not necessary or to suggest an alternative action. IBM shall
have 30 days from the date of the Regional Administrator’s notice to present the information. (D) If after 30 days IBM presents no further information or after a review of any submitted information, the Regional Administrator will issue a final written determination describing the Agency actions that are necessary to protect human health or the environment. Any required action described in the Regional Administrator’s determination shall become effective immediately, unless the Regional Administrator provides otherwise.
7. Notification Requirements: IBM must do the following before transporting the delisted
waste: (A) Provide a one-time written notification to any state Regulatory Agency to which
or through which it will transport the delisted waste described above for disposal, 60 days
before beginning such activities. (B) Update the one-time written notification if it ships the
delisted waste into a different disposal facility. Failure to provide this notification will result
in a violation of the delisting petition and a possible revocation of the decision.
*
*
*
*
*
proposed for review during the current
review-cycle.
DATES: Written comments must be
received by NMFS by August 15, 2012.
ADDRESSES: You may submit comments
DEPARTMENT OF COMMERCE
on this document, identified by 0648–
XC012 by any of the following methods:
National Oceanic and Atmospheric
• Electronic Submission: Submit all
Administration
electronic public comments via the
Federal e-Rulemaking Portal
50 CFR Chapters II, III, IV, V, and VI
www.regulations.gov. To submit
comments via the e-Rulemaking Portal,
RIN 0648–XC012
first click the ‘‘submit a comment’’ icon,
then enter 0648–XC012. Locate the
Plan for Periodic Review of
document you wish to comment on
Regulations
from the resulting list and click on the
AGENCY: National Marine Fisheries
‘‘Submit a Comment’’ icon on the right
Service (NMFS), National Oceanic and
of that line.
• Mail: Submit written comments to
Atmospheric Administration (NOAA),
Wendy Morrison, National Marine
Commerce.
Fisheries Service, NOAA, Office of
ACTION: Proposed rule; request for
Sustainable Fisheries, 1315 East-West
comments.
Highway, Silver Spring, MD 20910
SUMMARY: The Regulatory Flexibility Act (mark outside of envelope ‘‘Comments
(RFA) requires that the National Marine on 610 review’’).
Fisheries Service (NMFS) periodically
• Fax: 301–713–1193; Attn: Wendy
review existing regulations that have a
Morrison.
Instructions: Comments must be
significant economic impact on a
submitted by one of the above methods
substantial number of small entities,
to ensure that the comments are
such as small businesses, small
received, documented, and considered
organizations, and small governmental
by NMFS. Comments sent by any other
jurisdictions. This plan describes how
method, to any other address or
NMFS will perform this review and
individual, or received after the end of
describes the regulations that are being
[FR Doc. 2012–17272 Filed 7–13–12; 8:45 am]
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*
*
the comment period, may not be
considered. All comments received are
a part of the public record and will
generally be posted for public viewing
on www.regulations.gov without change.
All personal identifying information
(e.g., name, address, etc.) submitted
voluntarily by the sender will be
publicly accessible. Do not submit
confidential business information, or
otherwise sensitive or protected
information. NMFS will accept
anonymous comments (enter ‘‘N/A’’ in
the required fields if you wish to remain
anonymous). Attachments to electronic
comments will be accepted in Microsoft
Word or Excel, WordPerfect, or Adobe
PDF file formats only.
FOR FURTHER INFORMATION CONTACT:
Wendy Morrison, (301) 427–8504, for
questions on rules under
SUPPLEMENTARY INFORMATION section
listed in items 1 through 72; and
Heather Coll, (301) 427–8455, for
questions on rules under
SUPPLEMENTARY INFORMATION section
listed in items 73 through 76.
SUPPLEMENTARY INFORMATION:
Background
The RFA, 5 U.S.C. 601, requires that
Federal agencies take into account how
their regulations affect ‘‘small entities,’’
including small businesses, small
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[Federal Register Volume 77, Number 136 (Monday, July 16, 2012)]
[Proposed Rules]
[Pages 41720-41728]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17272]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R01-RCRA-2012-0447; FRL-9699-4]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Proposed Exclusion
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule and request for comment.
-----------------------------------------------------------------------
SUMMARY: The EPA (also, ``the Agency'' or ``we'' in this preamble) is
proposing to grant a petition submitted by International Business
Machines Corporation (IBM), in Essex Junction, Vermont to exclude (or
``delist'') up to 3,150 cubic yards per calendar year of F006
wastewater treatment sludge generated by IBM's Industrial Waste
Treatment System from the list of hazardous wastes.
The Agency has tentatively decided to grant the petition based on
an evaluation of waste-specific information provided by IBM. This
proposed decision, if finalized, would conditionally exclude the
petitioned waste from the requirements of hazardous waste regulations
under the Resource Conservation and Recovery Act (RCRA).
This exclusion would be valid only when the wastewater treatment
sludge is disposed of in a Subtitle D landfill which is permitted,
licensed, or otherwise authorized by a State to manage industrial solid
waste.
If finalized, EPA would conclude that IBM's petitioned waste is
nonhazardous with respect to the original listing criteria and that
there are no other factors which would cause the waste to be hazardous.
DATES: Comments must be received on or before August 15, 2012. EPA will
stamp comments received after the close of the comment period as late.
These late comments may not be considered in formulating a final
decision. Any person may request a hearing on the proposed decision by
filing a request to EPA by July 31, 2012. The request must contain the
information prescribed in 40 CFR 260.20(d).
[[Page 41721]]
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
RCRA-2012-0447 by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: leitch.sharon@epa.gov.
3. Fax: (617) 918-0647, to the attention of Sharon Leitch.
4. Mail: Sharon Leitch, RCRA Waste Management and UST Section,
Office of Site Remediation and Restoration (OSRR07-1), US EPA Region 1,
5 Post Office Square, Suite 100, Boston, MA 02109-3912.
5. Hand Delivery: Sharon Leitch, RCRA Waste Management and UST
Section, Office of Site Remediation and Restoration (OSRR07-1), U.S.
EPA Region 1, 5 Post Office Square, 7th floor, Boston, MA 02109-3912.
Such deliveries are only accepted during normal hours of operation, and
special arrangements should be made for deliveries of boxed
information. Please contact Sharon Leitch at (617) 918-1647.
Instructions: Direct your comments to Docket ID No. EPA-R01-RCRA-
2012-0447. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
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 through www.regulations.gov or
email information that you consider to be CBI or otherwise protected.
The 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 email
comment directly to EPA without going through www.regulations.gov, your
email 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 docket are listed in the
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
form. Publicly available docket materials are available either
electronically through www.regulations.gov or in hard copy at the EPA
Region 1 Library, 5 Post Office Square, 1st floor, Boston, MA 02109-
3912; by appointment only; tel: (617) 918-1990.
FOR FURTHER INFORMATION CONTACT: Sharon Leitch, RCRA Waste Management
and UST Section, Office of Site Remediation and Restoration, (Mail
Code: OSRR07-1), EPA Region 1, 5 Post Office Square, Suite 100, Boston,
MA 02109-3912; telephone number: (617) 918-1647; fax number (617) 918-
0647; email address: leitch.sharon@epa.gov.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
II. Background
A. What is a listed waste?
B. What is a delisting petition?
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 IBM petition EPA to delist?
B. How does IBM generate the waste?
C. How did IBM sample and analyze the petitioned waste?
D. What were the results of IBM's analysis of the waste?
E. How did EPA evaluate the risk of delisting this waste?
F. What did EPA conclude about IBM's waste?
IV. Conditions for Exclusion
A. When would EPA finalize the proposed delisting exclusion?
B. How will IBM manage the waste if it is delisted?
C. With what conditions must the petitioner comply?
D. What happens if IBM violates the terms and conditions of the
exclusion?
V. How would this action affect the states?
VI. Statutory and Executive Order Reviews
I. Overview Information
The EPA is proposing to grant a petition submitted by International
Business Machines Corporation (IBM) located in Essex Junction, Vermont
to exclude or delist an annual volume of 3,150 cubic yards of F006
wastewater treatment sludge from the lists of hazardous waste set forth
in Title 40 of the Code of Federal Regulations (40 CFR) 261.31. IBM
claims that the petitioned waste does not meet the criteria for which
EPA listed it, and that there are no additional constituents or factors
which could cause the waste to be hazardous.
Based on the EPA's evaluation described in section III, in which we
reviewed the description of the process which generates the waste and
the analytical data submitted by IBM, we agree with the petitioner that
the waste is nonhazardous. We believe that the petitioned waste does
not meet the criteria for which the waste was listed, and that there
are no other factors which might cause the waste to be hazardous.
II. Background
A. What is a listed waste?
The EPA published an amended list of hazardous wastes from
nonspecific and specific sources on January 16, 1981, as part of its
final and interim final regulations implementing Sec. 3001 of Resource
Conservation and Recovery Act (RCRA). The EPA has amended this list
several times and publishes it in 40 CFR 261.31 and 261.32.
We list these wastes as hazardous because: (1) They 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) or (2) they meet the criteria
for listing contained in Sec. 261.11(a)(2) or (3).
B. What is a delisting petition?
Individual waste streams may vary depending on raw materials,
industrial processes, and other factors. Thus, while a waste described
in the regulations generally is hazardous, a specific waste from an
individual facility meeting the listing description may not be.
The procedure to exclude or delist a waste in 40 CFR 260.20 and
260.22 allows a person, or a facility, to submit a petition to the EPA
or to an authorized state demonstrating that a specific waste from a
particular generating facility is not hazardous.
In a delisting petition, the petitioner must show that a waste does
not meet any of the criteria for listed wastes in 40 CFR 261.11 and
that the waste does not exhibit any of the hazardous waste
characteristics of ignitability, reactivity, corrosivity, or toxicity.
The petitioner must present sufficient information for the Agency to
decide whether any factors in addition to those for which the waste was
listed warrant retaining it as a hazardous waste. (See Sec. 260.22, 42
United States Code--U.S.C.--6921(f) and the background documents for
the listed wastes.)
[[Page 41722]]
If a delisting petition is granted, the generator remains obligated
under RCRA to confirm that the waste remains nonhazardous.
C. What factors must EPA consider in deciding whether to grant a
delisting petition?
In reviewing this petition, we considered the original listing
criteria and the additional factors required by the Hazardous and Solid
Waste Amendments of 1984 (HSWA). See Sec. 222 of HSWA, 42 U.S.C.
6921(f), and 40 CFR 260.22(d)(2)-(4). We evaluated the petitioned waste
against the listing criteria and factors cited in Sec. 261.11(a)(2)
and (3).
Besides considering the criteria in 40 CFR 260.22(a), 261.11(a)(2)
and (3), 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 we listed the waste, if these
additional factors could cause the waste to be hazardous.
Our tentative decision to delist waste from IBM's facility is based
on our evaluation of the waste for factors or criteria which could
cause the waste to be hazardous. These factors included: (1) Whether
the waste is considered acutely toxic; (2) the toxicity of the
constituents; (3) the concentration of the constituents in the waste;
(4) the tendency of the constituents to migrate and to bioaccumulate;
(5) the persistence in the environment of any constituents once
released from the waste; (6) plausible and specific types of management
of the petitioned waste; (7) the quantity of waste produced; and (8)
waste variability.
EPA must also consider as hazardous wastes, mixtures containing
listed hazardous wastes and wastes derived from treating, storing, or
disposing of listed hazardous waste. See 40 CFR 261.3(a)(2)(iv) and
(c)(2)(i), called the ``mixture'' and ``derived-from'' rules,
respectively. Mixture and derived-from wastes are also eligible for
exclusion but remain hazardous until excluded.
III. EPA's Evaluation of the Waste Information and Data
A. What waste did IBM petition EPA to delist?
On July 11, 2008, IBM petitioned EPA to exclude from the list of
hazardous wastes contained in 40 CFR 261.31, F006 Industrial Waste
Treatment Plant (IWTP) sludge generated from its facility located in
Essex Junction, Vermont. F006 is defined in Sec. 261.31 as
``Wastewater treatment sludges from electroplating operations * * *''
IBM claims that the petitioned waste does not meet the criteria for
which F006 was listed (i.e., cadmium, hexavalent chromium, nickel and
complexed cyanide) and that there are no other factors which would
cause the waste to be hazardous. Specifically, the petition request is
for a standard exclusion for 3,150 cubic yards per calendar year of
WWTP sludge.
B. How does IBM generate the waste?
The sludge IBM generates is from the combination of three separate
wastewater treatment processes at the facility. Those processes
include: the industrial waste treatment plant (IWTP) process; the
biological wastewater treatment plant (BWTP) process; and the chemical
mechanical polishing (CMP) microfiltration process. The sludge is
primarily sludge from the IWTP, this waste stream receives discharges
from chemical wafer and mask manufacturing cleaning, etching, and
stripping, photolithography waste, chemical etching and mechanical
polishing, air abatement scrubbers, effluent from the CMP and BWTP
treatment systems, wafer rinse, and facility maintenance operations.
The industrial wastewaters also include rinse waters from copper
electroplating manufacturing operations and wastewaters from acid
etching of a thin platinum film and the subsequent rinse step (the
copper and platinum wastewaters total less the 0.1 percent of the
overall wastewater treated). The biological waste streams include
sanitary wastewaters, dilute organic waste (DOW) and concentrated waste
(CW). The DOW waste stream receives discharges from chemical wafer
cleaning and stripping, Deep Ultra-Violet photolithography waste, air
abatement adsorber decant waters, and facility chilled water and boiler
maintenance operations. The CW stream consists of waste from
semiconductor and mask manufacturing photolithography develop steps,
chemical wafer cleaning, etching, and stripping operations, and parts
decontamination. The CMP microfiltration waste stream consists of
wastewater from chemical/mechanical polishing tools used in
semiconductor manufacturing. The CMP wastewaters also include copper
sulfate plating bath solutions (totaling less than 0.1 percent of the
wastewater treated through the CMP system). The sludges from these
three processes are combined, thickened/conditioned, and pressed to
generate the F006 waste stream.
C. How did IBM sample and analyze the petitioned waste?
To support its petition, IBM submitted: (1) Facility information on
production processes and waste generation processes; (2) Historical
sampling data of the IWTP sludge; (3) Analytical results from four
samples for total concentrations for volatiles (SW-846 Method 8260B),
semi volatiles (SW-846 Method 8270C) and metals (SW-846 Method 6010B
except for mercury--SW-846 Method 7471A and selenium--SW-846 Method
7010), for compounds of concern (COCs); and (4) Analytical results from
four samples for Toxicity Characteristic Leaching Procedure (TCLP)
extract values for volatiles (SW-846 Method 8260B), semi volatiles (SW-
846 Method 8270C) and metals (SW-846 Method 6010B except for mercury--
SW-846 Method 7470 and selenium--SM 3113B) for COCs.
IBM generated the sampling data used in the Delisting Risk
Assessment Software (DRAS) under a Quality Assurance Project Plan
(QAPP) that was approved by EPA, Region 1 on January 27, 2011.
Therefore, EPA believes that the sampling procedures used by IBM
satisfy EPA's criteria for collecting representative samples of the
F006 waste.
D. What were the results of IBM's analysis of the waste?
EPA believes that IBM's analytical characterization provides a
reasonable basis to grant IBM's petition for an exclusion of the
wastewater treatment sludge. Furthermore, EPA believes the data
submitted in support of the petition show that the sludge is non-
hazardous. Analytical data for the wastewater treatment sludge samples
were used in the DRAS to develop delisting levels.
The data summaries for the total detected constituents are as
follows: (mg/kg) Arsenic--7.5; Barium--39; Chromium--290; Lead--5.6;
Mercury--0.067; and Nickel--49. The data summary for the TCLP detected
constituents are as follows: (mg/l) Nickel--0.11 (all other
constituents were non-detect). Note that the above levels represent the
highest constituent concentration found in any one sample. All
analytical data for the volatiles and semi-volatiles samples were non-
detect.
E. How did EPA evaluate the risk of delisting this waste?
For this delisting determination, we assumed that the waste would
be disposed in a Subtitle D landfill and we considered transport of
waste constituents through groundwater, surface water and air. We
evaluated
[[Page 41723]]
IBM's petitioned waste using the Agency's Delisting Risk Assessment
Software (DRAS) described in 65 FR 58015 (September 27, 2000), 65 FR
75637 (December 4, 2000), and 73 FR 28768 (May 19, 2008) to predict the
maximum allowable concentrations of hazardous constituents that may be
released from the petitioned waste after disposal and determined the
potential impact of the disposal of IBM's petitioned waste on human
health and the environment. To predict the potential for release to
groundwater from landfilled wastes and subsequent routes of exposure to
a receptor, the DRAS uses dilution attenuation factors derived from
EPA's Composite Model for Leachate Migration and Transformation
Products (EPACMTP). From a release to groundwater, the DRAS considers
routes of exposure to a human receptor of ingestion of contaminated
groundwater, inhalation from groundwater while showering and dermal
contact from groundwater while bathing.
From a release to surface water by erosion of waste from an open
landfill into stormwater run-off, DRAS evaluates the exposure to a
human receptor by fish ingestion and ingestion of drinking water. From
a release of waste particles and volatile emissions to air from the
surface of an open landfill, DRAS considers routes of exposure of
inhalation of volatile constituents, inhalation of particles, and air
deposition of particles on residential soil and subsequent ingestion of
the contaminated soil by a child. The technical support document and
the user's guide to DRAS are included in the docket.
At a target cancer risk of 1 x 10-5 and a target hazard
quotient of 1.0, the DRAS program determined maximum allowable
concentrations for each constituent in both the waste and the leachate
at an annual waste volume of 3,150 cubic yards.
We used the maximum estimated annual waste volume and the maximum
reported total and TCLP leachate concentrations as inputs to estimate
the constituent concentrations in the groundwater, soil, surface water
or air. If, using an appropriate analytical method, a constituent was
not detected in any sample, it was considered not to be present in the
waste.
F. What did EPA conclude about IBM's waste?
The maximum reported concentrations of the hazardous constituents
found in this waste are presented above in section D. The maximum
allowable constituent concentrations as determined by the DRAS are as
follows: (mg/l) Nickel--32.4. The maximum allowable constituent
concentrations for the remaining constituents are based on the toxicity
characteristic in 40 CFR 261 Subpart C: (mg/l) Arsenic--5.0; Barium--
100.0; Cadmium--1.0; Chromium--5.0; Lead--5.0; and, Mercury--0.2. The
concentrations of all constituents in both the waste and the leachate
are below the allowable concentrations. We, therefore, conclude that
IBM's wastewater treatment sludge is not a substantial or potential
hazard to human health and the environment when disposed of in a
Subtitle D landfill.
We, therefore, propose to grant an exclusion for this waste. If
this exclusion is finalized, IBM must dispose of this waste in a
Subtitle D landfill permitted, licensed or otherwise authorized by a
state, and will remain obligated to verify that the waste meets the
allowable concentrations set forth here. IBM must also continue to
determine whether the waste is identified in subpart C of 40 CFR
pursuant to Sec. 261.11(c).
IV. Conditions for Exclusion
A. When would EPA finalize the proposed delisting exclusion?
HSWA specifically requires the EPA to provide notice and an
opportunity for comment before granting or denying a final exclusion.
Thus, EPA will not make a final decision or grant an exclusion until it
has addressed all timely public comments on today's proposal, including
any at public hearings.
Since this rule would reduce the existing requirements for persons
generating hazardous wastes, the regulated community does not need a
six-month period to come into compliance in accordance with Sec. 3010
of RCRA as amended by HSWA.
B. How will IBM manage the waste if it is delisted?
If the petitioned waste is delisted, IBM must dispose of it in a
Subtitle D landfill which is permitted, licensed, or otherwise
authorized by a state to manage industrial waste.
C. With what conditions must the petitioner comply?
The petitioner, IBM, must comply with the conditions which will be
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 IBM
must test the WWTP sludge, below which these wastes would be considered
non-hazardous. EPA selected the set of 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
constituents list from the composition of the waste, descriptions of
IBM'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 IBM 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.
Unless and until EPA concurs that the initial verification data
collected under paragraph (3) supports the data provided 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 waste cannot begin until two quarters of
verification sampling is completed and an approval is obtained from
EPA.
(3) Verification Testing Requirements:
IBM must implement a 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. The first part of
the verification testing program is the quarterly testing of
representative samples of the WWTP sludge during the first year of
waste generation (two quarters prior to obtaining written EPA approval
and two additional quarters). The proposed testing would verify that
IBM operates a treatment facility where the constituent concentrations
of the WWTP sludge do not exhibit unacceptable temporal and spatial
levels of toxic constituents. IBM would begin quarterly sampling 30
days after the final exclusion as described in paragraph (3)(A) of the
exclusion language. Consequently this program will ensure that the
sludge is evaluated in terms of variation in constituent concentrations
in the waste over time. Following two consecutive quarters of sampling
where the levels of constituents do not exceed the levels in paragraph
(1), IBM can then manage and dispose of the sludge as non-hazardous in
accordance with all
[[Page 41724]]
applicable solid waste regulations following EPA approval. If EPA
determines that the data collected under this paragraph does not
support the data provided in the petition, the exclusion will not cover
the generated wastes. IBM must then prove through a new demonstration
that its waste meets the conditions of the exclusion.
The second part of the verification testing program is the annual
testing of representative samples of the WWTP sludge, per paragraph
(3)(B) of the exclusion language. To confirm that the characteristics
of the waste do not change significantly over time, IBM must continue
to analyze a representative sample of the waste on an annual basis.
Annual testing requires analyzing the full list of constituents in
paragraph (1) of the exclusion language. If operating conditions change
as described in paragraph (4) of the exclusion language, IBM must
reinstate all testing in paragraph (1) of the exclusion language. IBM
must then prove through a new demonstration that its waste meets the
conditions of the exclusion. If the annual testing of the waste does
not meet the delisting requirements in paragraph (1), IBM must notify
EPA according to the requirements in paragraph (6) of the exclusion
language. The facility must provide sampling results that support the
rationale that the delisting exclusion should not be withdrawn.
(4) Changes in Operating Conditions:
Paragraph (4) of the exclusion language would allow IBM the
flexibility of modifying its processes (for example, changes in
equipment or operating conditions). However, if significant changes to
the manufacturing or treatment process described in the petition, or
the chemicals used in the manufacturing or treatment process are made,
then IBM must prove that the modified process(es)/chemicals will not
affect the composition or type of waste generated and must request
approval from EPA. EPA will determine if these changes will result in
additional COCs. IBM must manage wastes generated during the new
process demonstration as hazardous waste until it has obtained written
approval from EPA and paragraph (3) of the exclusion language is
satisfied.
(5) Data Submittals and Recordkeeping:
To provide appropriate documentation that IBM's WWTP sludge is
meeting the delisting levels, IBM must submit reports to EPA as
specified in the conditions, and must compile, summarize, and keep
delisting records on-site for a minimum of five years. It must 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 IBM furnish the
data upon request for inspection by any employee or representative of
EPA or the State of Vermont.
If the proposed exclusion is made final, it will apply only to
3,150 cubic yards per calendar year of wastewater treatment sludge
generated at IBM after successful verification testing.
EPA would require IBM to file a new delisting petition under the
following circumstances:
(a) If it generates waste volumes greater than 3,150 cubic yards
per calendar year of WWTP sludge. IBM must manage these greater volumes
as hazardous unless and until EPA grants a new exclusion.
EPA may review and approve changes in writing or alternatively may
require IBM to file a new delisting petition under any of the following
circumstances:
(b) If it significantly alters the wastewater treatment process;
(c) If it significantly changes from the current manufacturing
process(es) described in the International Business Machines petition;
or
(d) If it makes any changes that could affect the composition or
type of waste generated such that the changes would cause any of the
constituents in paragraph (1) of the exclusion language to potentially
be above the delisting levels or would introduce any new constituents
into the waste.
(6) Reopener:
The purpose of paragraph (6) of the exclusion language is to
require IBM 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. 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 IBM 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 it has the authority under RCRA and the Administrative
Procedures Act (APA), 5 U.S.C. 551 (1978) et seq., to 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
section 553(b).
(7) Notification Requirements:
In order to adequately track wastes that have been delisted, EPA is
requiring that IBM provide a one-time written notification to any state
regulatory agency through which or to which the delisted waste is being
transported. IBM must provide this notification 60 days before
commencing this activity. In addition to providing this notification,
IBM is advised to verify with each state the status of EPA's delisting
decision under state law (see the discussion in Section V. for
specifics).
D. What happens if IBM violates the terms and conditions of the
exclusion?
If IBM violates the terms and conditions established in the
exclusion, the wastes in question would not be exempt from Subtitle C
since this is a conditional exclusion, and thus they would be subject
to hazardous waste management requirements. EPA also could then
initiate 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 IBM to conduct the appropriate waste analysis and comply with
the criteria explained above in paragraph (1) of the exclusion.
V. How would this action affect the states?
EPA is issuing this exclusion under the Federal RCRA delisting
program. Thus, upon the exclusion being finalized, the wastes covered
will be removed from Subtitle C control under the Federal RCRA program.
This will mean, first, that the wastes will be delisted in any State or
territory where the EPA is directly administering the
[[Page 41725]]
RCRA program (e.g., Iowa, Indian Country). However, whether the wastes
will be delisted in States which have been authorized to administer the
RCRA program will vary depending upon the authorization status of the
States and the particular requirements regarding delisted wastes in the
various States.
While Vermont has been authorized to generally administer the
Federal RCRA program, it has not sought or obtained authorization to
delist Federal listed wastes. See 58 FR 26243 (May 3, 1993). Instead,
the Vermont Hazardous Waste Regulation section 7-217(c) specifies that
``the Administrator of EPA shall retain the authority to exclude such
wastes.'' By letter dated April 12, 2012, the Vermont Department of
Environmental Conservation has confirmed that Vermont interprets this
regulation to mean that upon the EPA making a delisting determination
(regarding a federally regulated waste), the delisting determination
takes effect within that State. Thus, this delisting determination will
apply within Vermont with no further action required by the State.
Like Vermont, some other generally authorized States have not
received authorization for delisting. Thus, the EPA makes delisting
determinations for such States. However, RCRA allows states to impose
their own regulatory requirements that are more stringent than EPA's,
under Sec. 3009 of RCRA. These more stringent requirements may include
a provision that prohibits a federally issued exclusion from taking
effect in the state, or that requires a State concurrence before the
Federal exclusion takes effect, or that allows the State to add
conditions to any Federal exclusion. We urge the petitioner to contact
the state regulatory authority in each State to or through which it may
wish to ship its wastes to establish the status of its wastes under the
state's laws.
EPA has also authorized some states to administer a delisting
program in place of the Federal program, that is, to make state
delisting decisions. In such states, the state delisting requirements
operate in lieu of the Federal delisting requirements. Therefore, this
exclusion does not apply in those authorized states unless the state
makes the rule part of its authorized program. If IBM transports the
federally excluded waste to or manages the waste in any state with
delisting authorization, IBM must obtain a delisting authorization from
that state before it can manage the waste as non-hazardous in that
state.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review ''
(58 FR 51735, October 4, 1993), this rule is not of general
applicability and therefore, is not a regulatory action subject to
review by the Office of Management and Budget (OMB). This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it
applies to a particular facility only. Because this rule is of
particular applicability relating to a particular facility, it is not
subject to the regulatory flexibility provisions of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), or to Sec. Sec. 202, 204, and
205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).
Because this rule will affect only a particular facility, it will not
significantly or uniquely affect small governments, as specified in
Sec. 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 DRAS, which considers health and safety
risks to children, to calculate the maximum allowable concentrations
for this rule. This rule is not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)), because it
is not a significant regulatory action under Executive Order 12866.
This rule does not involve technical standards; thus, the requirements
of Sec. 12(d) of the National Technology Transfer and Advancement Act
of 1995 (15 U.S.C. 272 note) do not apply. As required by Sec. 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 Sec. 801 the following types of
rules: (1) Rules of particular applicability; (2) rules relating to
agency management or personnel; and (3) rules of agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties (5 U.S.C. 804(3)). EPA is not
required to submit a rule report regarding today's action under Sec.
801 because this is a rule of particular applicability. Executive Order
(EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive
policy on environmental justice. Its main provision directs Federal
agencies, to the greatest extent practicable and permitted by law, to
make environmental justice part of their mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States.
EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. The Agency's risk assessment did not identify risks from
management of this material in a Subtitle D landfill. Therefore, EPA
believes that any populations in proximity of the landfills used by
this facility should not be adversely affected by common waste
management practices for this delisted waste.
[[Page 41726]]
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: June 20, 2012.
H. Curtis Spalding,
Regional Administrator, EPA Region 1.
For the reasons set out in the preamble, EPA proposes to amend 40
CFR part 261 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, 6924(y) and
6938.
2. Amend Table 1 of Appendix IX to part 261 by adding the following
waste stream in alphabetical order by facility ``IBM Corporation'' to
read as follows:
Appendix IX to Part 261--Wastes Excluded Under Sec. Sec. 260.20 and
260.22
Table 1--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
IBM Corporation........................ Essex Junction, VT..................... Wastewater Treatment Sludge
(Hazardous Waste No. F006)
generated at a maximum annual
rate of 3,150 cubic yards per
calendar year and disposed of
in a Subtitle D Landfill
which is licensed, permitted,
or otherwise authorized by a
state to accept the delisted
wastewater treatment sludge.
IBM must implement a testing
program that meets the
following conditions for the
exclusion to be valid:
1. Delisting Levels: All
leachable concentrations for
the following constituents
must not exceed the following
levels (mg/L for TCLP):
Arsenic--5.0; Barium--100.0;
Cadmium--1.0; Chromium--5.0;
Lead--5.0; Mercury 0.2; and,
Nickel--32.4.
2. Waste Handling and Holding:
(A)IBM must manage as
hazardous all WWTP sludge
generated until it has
completed initial
verification testing
described in paragraph (3)(A)
and valid analyses show that
paragraph (1) is satisfied
and written approval is
received by EPA. (B) Levels
of constituents measured in
the samples of the WWTP
sludge that do not exceed the
levels set forth in paragraph
(1) for two consecutive
quarterly sampling events are
non-hazardous. After approval
is received from EPA, IBM can
manage and dispose of the non-
hazardous WWTP sludge
according to all applicable
solid waste regulations. (C)
Not withstanding having
received the initial approval
from EPA, if constituent
levels in a later sample
exceed any of the Delisting
Levels set in paragraph (1),
from that point forward, IBM
must treat all the waste
covered by this exclusion as
hazardous until it is
demonstrated that the waste
again meets the levels in
paragraph (1). IBM must
manage and dispose of the
waste generated under
Subtitle C of RCRA from the
time that it becomes aware of
any exceedance.
[[Page 41727]]
3. Verification Testing
Requirements: IBM must
perform sample collection and
analyses in accordance with
the approved Quality
Assurance Project Plan dated
January 27, 2011. All samples
shall be representative
composite samples according
to 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
0010, 0011, 0020, 0023A,
0030, 0031, 0040, 0050, 0051,
0060, 0061, 1010A, 1020B,
1110A, 1310B, 1311, 1312,
1320, 1330A, 9010C, 9012B,
9040C, 9045D, 9060A, 9070A
(uses EPA Method 1664, Rev.
A), 9071B, and 9095B. Methods
must meet Performance Based
Measurement System Criteria
in which the Data Quality
Objectives are to demonstrate
that samples of the IBM
sludge are representative for
all constituents listed in
paragraph (1). To verify that
the waste does not exceed the
specified delisting
concentrations, for one year
after the final exclusion is
granted, IBM must perform
quarterly analytical testing
by sampling and analyzing the
WWTP sludge as follows: (A)
Quarterly Testing: (i)
Collect two representative
composite samples of the WWTP
sludge at quarterly intervals
after EPA grants the final
exclusion. The first
composite samples must be
taken within 30 days after
EPA grants the final
approval. The second set of
samples must be taken at
least 30 days after the first
set. (ii) Analyze the samples
for all constituents listed
in paragraph (1). Any waste
regarding which a composite
sample is taken that exceeds
the delisting levels listed
in paragraph (1) for the
sludge must be disposed as
hazardous waste in accordance
with the applicable hazardous
waste requirements from the
time that IBM becomes aware
of any exceedance. (iii)
Within thirty (30) days after
taking each quarterly sample,
IBM will report its
analytical test data to EPA.
If levels of constituents
measured in the samples of
the sludge do not exceed the
levels set forth in paragraph
(1) of this exclusion for two
consecutive quarters, and EPA
concurs with those findings,
IBM can manage and dispose
the non-hazardous sludge
according to all applicable
solid waste regulations. (B)
Annual Testing: (i) If IBM
completes the quarterly
testing specified in
paragraph (3) above and no
sample contains a constituent
at a level which exceeds the
limits set forth in paragraph
(1), IBM may begin annual
testing as follows: IBM must
test two representative
composite samples of the
wastewater treatment sludge
(following the same protocols
as specified for quarterly
sampling, above) for all
constituents listed in
paragraph (1) at least once
per calendar year. (ii) The
samples for the annual
testing taken for the second
and subsequent annual testing
events shall be taken within
the same calendar month as
the first annual sample
taken. (iii) IBM shall submit
an annual testing report to
EPA with its annual test
results, within thirty (30)
days after taking each annual
sample. The annual testing
report also shall include the
total amount of waste in
cubic yards disposed during
the calendar year.
4. Changes in Operating
Conditions: If IBM
significantly changes the
manufacturing or treatment
process described in the
petition, or the chemicals
used in the manufacturing or
treatment process, it must
notify the EPA in writing and
may no longer handle the
wastes generated from the new
process as non-hazardous
unless and until the wastes
are shown to meet the
delisting levels set in
paragraph(1), IBM
demonstrates that no new
hazardous constituents listed
in appendix VIII of part 261
have been introduced, and IBM
has received written approval
from EPA to manage the wastes
from the new process under
this exclusion. While the EPA
may provide written approval
of certain changes, if there
are changes that the EPA
determines are highly
significant, the EPA may
instead require IBM to file a
new delisting petition.
5. Data Submittals and
Recordkeeping: IBM must
submit the information
described below. If IBM fails
to submit the required data
within the specified time or
maintain the required records
on-site for the specified
time, EPA, at its discretion,
will consider this sufficient
basis to reopen the exclusion
as described in paragraph
(6). IBM must: (A) Submit the
data obtained through
paragraph (3) to the Chief,
RCRA Waste Management & UST
Section, U.S. EPA Region 1,
(OSRR07-1), 5 Post Office
Square, Suite 100, Boston, MA
02109-3912, within the time
specified. All supporting
data can be submitted on CD-
ROM or some comparable
electronic media; (B)
Compile, summarize, and
maintain on site for a
minimum of five years and
make available for inspection
records of operating
conditions, including monthly
and annual volumes of WWTP
sludge generated, analytical
data, including quality
control information and,
copies of the notification(s)
required in paragraph (7);
(C) Submit with all data a
signed copy of the
certification statement in 40
CFR 260.22(i)(12).
[[Page 41728]]
6. Reopener Language: (A) If,
anytime after disposal of the
delisted waste, IBM possesses
or is otherwise made aware of
any environmental data
(including but not limited to
leachate data or groundwater
monitoring data) or any other
relevant data to the delisted
waste indicating that any
constituent is at a
concentration in the leachate
higher than the specified
delisting concentration, then
IBM must report such data, in
writing, to the Regional
Administrator and to the
Vermont Agency of Natural
Resources Secretary within 10
days of first possessing or
being made aware of that
data. (B) Based on the
information described in
paragraph (A) and any other
information received from any
source, the Regional
Administrator will make a
preliminary determination as
to whether the reported
information requires Agency
action to protect human
health or the environment.
Further action may include
suspending, or revoking the
exclusion, or other
appropriate response
necessary to protect human
health and the environment.
(C) If the Regional
Administrator determines that
the reported information does
require Agency action, the
Regional Administrator will
notify IBM in writing of the
actions the Regional
Administrator believes are
necessary to protect human
health and the environment.
The notice shall include a
statement of the proposed
action and a statement
providing IBM with an
opportunity to present
information as to why the
proposed Agency action is not
necessary or to suggest an
alternative action. IBM shall
have 30 days from the date of
the Regional Administrator's
notice to present the
information. (D) If after 30
days IBM presents no further
information or after a review
of any submitted information,
the Regional Administrator
will issue a final written
determination describing the
Agency actions that are
necessary to protect human
health or the environment.
Any required action described
in the Regional
Administrator's determination
shall become effective
immediately, unless the
Regional Administrator
provides otherwise.
7. Notification Requirements:
IBM must do the following
before transporting the
delisted waste: (A) Provide a
one-time written notification
to any state Regulatory
Agency to which or through
which it will transport the
delisted waste described
above for disposal, 60 days
before beginning such
activities. (B) Update the
one-time written notification
if it ships the delisted
waste into a different
disposal facility. Failure to
provide this notification
will result in a violation of
the delisting petition and a
possible revocation of the
decision.
* * * * * * *
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[FR Doc. 2012-17272 Filed 7-13-12; 8:45 am]
BILLING CODE 6560-50-P
