Hazardous Waste Management System; Final Exclusion for Identifying and Listing Hazardous Waste, 19676-19681 [2020-05910]

Download as PDF 19676 * * Federal Register / Vol. 85, No. 68 / Wednesday, April 8, 2020 / Rules and Regulations * * * [FR Doc. 2020–06464 Filed 4–7–20; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 261 [EPA–R10–RCRA–2018–0662; FRL–10006– 64–Region 10] Hazardous Waste Management System; Final Exclusion for Identifying and Listing Hazardous Waste Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: lotter on DSKBCFDHB2PROD with RULES The information in this section is organized as follows: SUPPLEMENTARY INFORMATION: The Environmental Protection Agency (EPA) (also, ‘‘the Agency ‘‘or ‘‘we’’ in this preamble) is taking final action to grant three petitions submitted jointly by Emerald Kalama Chemical, LLC (Emerald) and Fire Mountain Farms, Inc (FMF) (Petitioners), in Lewis County, Washington to exclude (or ‘‘delist’’) a one-time amount up to 20,100 cubic yards of U019 (benzene) and U220 (toluene) mixed material from the list of federal hazardous wastes as proposed on November 12, 2019. The EPA has decided to grant these petitions as proposed and under the same conditions based on an evaluation of waste-specific information provided by the Petitioners and a consideration of public comments received. DATES: This final rule is effective on April 8, 2020. ADDRESSES: The EPA has established a docket for this action under Docket ID No. [EPA–R10–RCRA–2018–0662]. All documents in the docket are listed on the www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through www.regulations.gov or in hard copy at the RCRA Records Center, 16th Floor, U.S. EPA, Region 10, 1200 6th Avenue, Suite 155, OAW–150, Seattle, Washington 98101. This facility is open from 8:30 a.m. to 4:00 p.m., Monday through Friday, excluding legal holidays. The EPA recommends you telephone Dr. David Bartus at (206) 553– 2804 before visiting the Region 10 office. The public may copy material SUMMARY: VerDate Sep<11>2014 19:34 Apr 07, 2020 Jkt 250001 from the regulatory docket at 15 cents per page. FOR FURTHER INFORMATION CONTACT: Dr. David Bartus, EPA, Region 10, 1200 6th Avenue, Suite 155, OAW–150, Seattle, Washington 98070; telephone number: (206) 553–2804; email address: bartus.dave@epa.gov. As discussed below, Ecology is evaluating the petitions submitted by Emerald and FMF under state authority. Information on Ecology’s action may be found at https://fortress.wa.gov/ecy/ publications/SummaryPages/ 1804023.html. I. Background A. What is a delisting petition? B. What regulations allow a waste to be delisted? II. Emerald Kalama’s and FMF’s Petitions A. What wastes did petitioners petition epa to delist? B. What information was submitted in support of these petitions? III. EPA’s Evaluation and Public Comments A. What decision is EPA finalizing and why? B. Public Comments Received and EPA’s Response IV. Final Rule A. What are the terms of this exclusion? B. When is the delisting effective? C. How does this action affect the states? V. Statutory and Executive Order Reviews I. Background A. What is a delisting petition? A delisting petition is a request from a generator to exclude waste from the list of hazardous wastes under RCRA regulations. In a delisting petition, the petitioner must show that waste generated at a particular facility does not meet any of the criteria for which EPA listed the waste as set forth in 40 CFR 261.11 and the background document for the waste. In addition, a petitioner must demonstrate that the waste does not exhibit any of the hazardous waste characteristics (that is, ignitability, reactivity, corrosivity, and toxicity) and must present sufficient information for us to decide whether factors other than those for which the waste was listed warrant retaining it as a hazardous waste. See 40 CFR 260.22, Section 3001(f) of RCRA, 42 U.S.C. 6921(f) and the background document for a listed waste. A generator of a waste excluded from the hazardous waste lists of 40 CFR part 261 subpart D remains obligated under RCRA to confirm that its waste remains nonhazardous based on the hazardous waste characteristics in order to PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 continue to manage the waste as nonhazardous. B. What regulations allow a waste to be delisted? Under 40 CFR 260.20, 260.22, and 42 U.S.C. 6921(f), facilities may petition the EPA to remove their wastes from otherwise applicable hazardous waste storage, treatment and disposal requirements by excluding them from the lists of hazardous wastes contained in 40 CFR 261.31 and 261.32. Specifically, 40 CFR 260.20 allows any person to petition the Administrator to modify or revoke any provision of 40 CFR parts 260 through 266, 268, and 273. 40 CFR 260.22 provides a generator the opportunity to petition the Administrator to exclude a waste from the lists of hazardous wastes on a ‘‘generator specific’’ basis. II. Emerald Kalama’s and FMF’s Petitions A. What wastes did petitioners petition EPA to delist? Emerald manufactures various organic chemicals used as artificial flavors and fragrances, food preservatives, plasticizers, and intermediates at their facility in Kalama, Washington. Most of the chemicals produced are derived from toluene or from the oxidation products of toluene, including benzoic acid and benzaldehyde. Additional products are produced as derivatives of benzoic acid and benzaldehyde. Products are typically purified by continuous or batch distillation. In conjunction with its manufacturing processes, Emerald operates an industrial wastewater treatment system, consisting of an anaerobic digestion process and an aerobic oxidation system, both of which are biological treatment systems very similar to municipal wastewater treatment systems. This treatment system produces industrial wastewater treatment plant biological solids (IWBS). As documented in the Petitioners’ delisting petitions, the IWBS designates as U019 (benzene) and U220 (toluene). FMF operates receiving, storage, treatment, and land application facilities in Lewis County, Washington for wastewater treatment plant treatment solids received from municipal, industrial, and private wastewater treatment plants. FMF is not permitted or otherwise authorized to manage, treat, or dispose of hazardous or dangerous wastes. Emerald contracted with FMF to land apply Emerald’s IWBS beginning in October 1995. FMF mixed Emerald’s IWBS with treatment solids from other facilities E:\FR\FM\08APR1.SGM 08APR1 Federal Register / Vol. 85, No. 68 / Wednesday, April 8, 2020 / Rules and Regulations and land applied or stored the mixed IWBS/treatment solids wastes at several FMF facilities. The RCRA rules require that listed hazardous wastes, when mixed with other materials, continue to be regulated as listed hazardous wastes (40 CFR 261.3). The mixed IWBS/ treatment solids wastes are currently stored at three FMF facilities: Burnt Ridge located at 856 Burnt Ridge Road, Onalaska, Washington; Newaukum Prairie located at 349 State Route 508, Chehalis, Washington; and Big Hanaford located at 307 Big Hanaford Road, Centralia, Washington. Under a separate action,1 Ecology is requiring that Emerald and FMF remove these wastes from the three units according to closure plans approved pursuant to WAC 173– 303–610. The Petitioners have requested that up to 4,700 cubic yards at the Burnt Ridge facility, 10,400 cubic yards at the Newaukum Prairie facility, and 5,000 cubic yards at the Big Hanaford facility of IWBS/treatment solids be excluded from the list of hazardous wastes. lotter on DSKBCFDHB2PROD with RULES B. What information was submitted in support of these petitions? FMF conducted an investigation of the wastes at each of the three storage units in September 2014.2 Three composite samples of the mixed IWBS/ treatment solids wastes were collected from each storage unit. At Burnt Ridge and Newaukum Prairie, each composite sample consisted of nine grab samples collected from various depths. Each composite sample collected at Big Hanaford consisted of six grab samples collected from various depths. Each composite sample was analyzed for the following constituents or constituent groups: Volatile organic compounds (VOCs), semivolatile organic compounds (SVOCs), total metals, total cyanide, and total solids. The specific analytes included in the analysis are defined by the analytical method used for each group. In addition, two composite samples from the Newaukum Prairie storage unit and one composite sample each from the Burnt Ridge and Big Hanaford storage units were analyzed for the following parameters or constituent groups: Pesticides; polychlorinated 1 The Washington State Department of Ecology has entered into a litigation settlement (Docket Entry 3) with Fire Mountain Farms and EmeraldKalama that, in part, requires closure of the units managing dangerous waste considered in this final exclusion. In this context, this final exclusion is a ‘‘one-time’’ delisting that will allow the fixed volume of wastes to be generated pursuant to closure of these three units as non-hazardous. 2 This investigation is documented in the first report in Appendix C of the three delisting petitions (Docket Entries 7–9). VerDate Sep<11>2014 19:34 Apr 07, 2020 Jkt 250001 biphenyl (PCB) Aroclors; dioxins and furans, reported as 2,3,7,8tetrachlorodibenzodioxin toxicity equivalence quotient; ammonia; Total Kjeldahl Nitrogen (TKN); pH, nitrite; and nitrate + nitrite (the concentration of nitrate was calculated by the analytical laboratory). Fourteen grab samples from the Newaukum Prairie storage unit and seven grab samples each from the Burnt Ridge and Big Hanaford storage units were analyzed for total fecal coliform. Emerald conducted additional sampling of the mixed IWBS/treatment solids wastes at each of the three storage units in August and October 2017.3 Emerald performed the additional sampling based on the preliminary delisting levels and the September 2014 investigation. Samples from the storage units at Burnt Ridge, Newaukum Prairie, and Big Hanaford were analyzed for selected volatile organic compounds (acetone, benzene, methanol, and toluene), total solids, and pH. Samples from Big Hanaford were analyzed for total acrylonitrile; cobalt; 4methylphenol; 2,4-dinitrotoluene; 2,6dinitrotoluene; and naphthalene. III. EPA’s Evaluation and Public Comments A. What decision is EPA finalizing and why? The EPA is finalizing an exclusion for a one-time amount up to 20,100 cubic yards of U019 (benzene) and U220 (toluene) mixed material from the list of federal hazardous wastes currently located at three FMF facilities, as proposed in our notice of proposed rulemaking 84 FR 60975 (November 12, 2019). The wastes covered by this delisting are limited to 4,700 cubic yards of mixed materials at the Burnt Ridge facility, 10,400 cubic yards at the Newaukum Prairie facility, and 5,000 cubic yards at the Big Hanaford facility, present at each facility as of the effective date of this exclusion and that are associated with closure of hazardous waste management units at three facilities owned and operated by FMF in accordance with closure plans approved by Ecology. The Petitioners petitioned EPA to exclude, or delist, these wastes because they believed that the petitioned wastes do not meet the criteria for which they were listed and that there are no additional constituents or factors which could cause the wastes to be hazardous waste. Review of this petition included consideration of the original listing criteria, as well as the 3 Results of these sampling activities are documented in the third report in Appendix C of the three delisting petitions (Docket Entries 7–9). PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 19677 additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(2) through (4). The EPA proposed on November 12, 2019 (84 FR 60975) to exclude or delist the petitioned wastes at the three FMF facilities from the list of hazardous wastes in 40 CFR 261.31 and accepted public comment on the proposed rulemaking. The EPA considered all comments received, and for reasons discussed in both the proposal and this final action, has determined that the petitioned wastes should be excluded from regulation as hazardous waste under the specified conditions, as originally proposed. B. Public Comments Received and EPA’s Response The EPA received comments from seven individuals on the proposed rulemaking. Some commenters expressed support for the proposed exclusion while still raising some adverse comments. A brief summary of the adverse comments and EPA’s responses to them are as follows. Commenter 1 (Docket entry Comment 0025). This commenter disagreed with the proposed rule on the basis that ‘‘there is already enough hazardous waste being expelled into our environment, and that this one-time amount of hazardous waste still pollutes our environment.’’ The commenter also asserted that the proposed action ‘‘goes against the hazardous waste regulations under [RCRA].’’ EPA disagrees that the proposed delisting action will result in hazardous waste being expelled into the environment. The scope of this rulemaking is limited to a determination of whether the covered wastes may be appropriately managed as solid wastes and not hazardous wastes. In fact, this delisting, in conjunction with closure of the units under Ecology’s dangerous waste program is expected to address commenter’s concerns regarding releases from these units by ensuring that the wastes are placed in a secure, monitored landfill. Further, the proposed action is not in conflict with RCRA, but is an exercise of authority specifically provided for the delisting of hazardous wastes found in the implementing regulations at 40 CFR 260.20 and 22. Commenter 2 (Docket entry Comment 0026). This commenter questioned ‘‘[w]hat is to be gained for the environment by allowing these [two] companies to dump these chemicals in an improved landfill instead of cleaning up the land’’. The commenter appears to misunderstand how the action that EPA E:\FR\FM\08APR1.SGM 08APR1 lotter on DSKBCFDHB2PROD with RULES 19678 Federal Register / Vol. 85, No. 68 / Wednesday, April 8, 2020 / Rules and Regulations is finalizing relates to the obligation of the Petitioners to clean up the three sites where the waste is currently stored. As noted in Footnote 4 in the notice of proposed rulemaking, Ecology has determined that the units managing the candidate wastes at the three FMF facilities are illegally storing listed hazardous waste, and that in order to return to compliance with the state dangerous waste regulation and to protect the environment, each of the facilities must be closed under an approved dangerous waste closure plan. Based on the analysis presented in the proposed rule, EPA has determined that it is protective of human health and the environment to allow wastes from closure of these units to be disposed of in a monitored solid waste landfill. EPA acknowledges the commenter’s concern regarding cleaning up the land affected by past management of these wastes, but notes that clean up obligations at these sites is beyond the scope of this rulemaking. This commenter also provided adverse comments on EPA’s proposed ‘‘Strengthening Transparency in Regulatory Science’’ regulation. This matter is outside of the scope of this final rulemaking. Commenter 3 (Docket entry Comment 0027). This commenter questioned the ethics and legitimacy of the exemption of the Petitioners’ wastes from regulation as hazardous wastes and stressed the importance of laws being applied evenly to all parties. The commenter seems to assert that allowing for a delisting process offers some parties an unfair advantage and questioned whether ulterior motives were at play that ‘‘pose a greater risk to public safety than initially understood.’’ EPA disagrees with the commenter’s contention that this action is inconsistent with regulatory requirements. As explained in detail in the notice of proposed rulemaking, EPA is exercising regulatory authority that is potentially available to any petitioner whose wastes meet the criteria for delisting provided under the law. Additionally, as explained elsewhere in this final action, EPA believes that this delisting action, will provide a timely and protective pathway to closure of the three FMF facilities under the state dangerous waste program. Finally, the commenter noted that wastes in the three FMF facilities may pose ‘‘a greater risk to public safety than initially understood.’’ As discussed in detail in the notice of proposed rulemaking, EPA has carefully considered the risks of the waste using established risk evaluation methodology. Based on this analysis EPA has determined that excluding VerDate Sep<11>2014 19:34 Apr 07, 2020 Jkt 250001 these wastes from the hazardous waste management system, subject to the conditions of this final rule, is fully protective of human health and the environment. Commenter 4 (Docket entry Comment 0028). This commenter identified hazards associated with toluene, as described in a safety data sheet for the chemical and questioned what benefit delisting over 20,000 cubic yards of a mixture containing this chemical would have for the general public. As discussed in the notice of proposed rulemaking, characterization sampling and analysis as well as the risk analysis of the wastes using the Delisting Risk Assessment Software (DRAS) explicitly considered toluene and concluded that it was not present at levels that warranted retention of the mixed material as a listed waste. Whether or not a delisting benefits the public at large is not a criterion for consideration under the procedures set out at 40 CFR 260.20 for delisting a listed hazardous waste. However, as explained in the proposed rulemaking, this action will provide a timely and protective pathway to closure of the three FMF facilities under the state dangerous waste program. Timely and protective closure of these facilities and responsible management of the wastes at issue in an appropriately regulated landfill is in the public interest. Commenter 5 (Docket entry Comment 0029). The commenter was supportive of the proposed delisting but expressed a preference that the Petitioners analyze five (as opposed to three) samples of the mixed IWBS/treatment solids wastes before the start of closure activities. EPA continues to believe that three samples of the materials in question will provide a reasonable demonstration of compliance with the delisting conditions. EPA proposed the sampling requirement as a condition of the exclusion in order to ensure analytical data are available for all delisting verification constituents, including a small number of constituents considered in the delisting analysis but not included in the original waste characterization database. Should results of the analysis of these additional samples demonstrate other than full compliance with the delisting conditions, the terms of the exclusion enable EPA to require the Petitioners to take appropriate action or to suspend the effectiveness of the delisting. Commenter 6 (Docket entry Comment 0030a). This commenter expressed concern regarding testing of groundwater or drinking water wells in the area north of the Newaukum Prarie site and raised several concerns about PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 monitoring results and the extent of contamination at the three sites and made recommendations for future monitoring. These comments are beyond the scope of this rulemaking and are best addressed by Ecology. This commenter also stated that cobalt was considered only in the analysis of wastes at the Big Hanaford site—in fact, EPA considered cobalt at all three sites, as documented in Tables 3, 4 and 5 in the notice of proposed rulemaking. This commenter also requested that only state or EPA supervised site workers should be used to gather material for compliance. EPA disagrees that such direct supervision of sample collection is necessary to assure compliance with the requirements of the delisting. EPA generally requires hazardous waste facilities to conduct their own delisting verification sampling and analysis, with agency oversight and review. EPA will carefully review the results of sampling and analysis required under the delisting rule to ensure the resulting data are appropriate for use in demonstrating compliance with requirements of the delisting exclusion. Commenter 7 (Docket entries Comment 0031 and 0032). This commenter submitted two sets of comments that are substantially similar. The commenter described what he believes to be environmental damage to plants in areas surrounding the Newaukum Prairie site, and groundwater contamination near the Newaukum and Burnt Ridge sites that the commenter attributes to Petitioner FMF’s activities. The commenter urges additional and more current testing of groundwater to be performed in the area. The commenter also describes health impacts and nuisance issues that he believes are attributable to Petitioner FMF’s activities at the Newaukum site. This commenter raised concerns about the operations and aeration of lagoons at Newaukum site. Finally, the commenter urges that the material at Newaukum should be disposed of at a landfill that is qualified and licensed to handle this material, and states that Petitioner FMF would prefer to land apply the materials in Lewis county, Washington. In taking this final action, Petitioners will be required to dispose of materials from the sites identified by this commenter in a RCRA Subtitle D landfill. Under the terms of this final exclusion, land application of the materials subject to this delisting is prohibited. However, other matters concerning ongoing operations at the Petitioner FMF’s sites and groundwater or other sampling activities beyond sampling of the E:\FR\FM\08APR1.SGM 08APR1 Federal Register / Vol. 85, No. 68 / Wednesday, April 8, 2020 / Rules and Regulations delisted materials are outside of the scope of this rulemaking. IV. Final Rule A. What are the terms of this exclusion? EPA is finalizing this exclusion as proposed, including all of the associated conditions. As a key condition of this exclusion, the Petitioners must dispose of this waste in a subtitle D landfill licensed, permitted or otherwise authorized by a state, and will remain obligated to verify that the waste meets the allowable concentrations set forth here. This exclusion applies only to a maximum volume of waste and is effective only if all conditions contained in this rule are satisfied. Wastes in excess of these quantities or that otherwise do not meet the conditions of this exclusion must be managed as hazardous waste. B. When is the delisting effective? This rule is effective April 8, 2020. The Hazardous and Solid Waste Amendments of 1984 amended section 3010 of RCRA, 42 U.S.C. 6930(b)(1), to allow rules to become effective in less than six months when the regulated community does not need the six-month period to come into compliance. This rule reduces rather than increases the existing requirements and, therefore, is effective immediately upon publication under the Administrative Procedures Act, pursuant to 5 U.S.C. 553(d). lotter on DSKBCFDHB2PROD with RULES C. How does this action affect the states? This exclusion is being issued under the federal RCRA delisting program. Therefore, only states subject to federal RCRA delisting provisions would be affected. This exclusion is not effective in states that have received authorization to make their own delisting decisions. Also, the exclusion may not be effective in states having a dual system that includes federal RCRA requirements and their own requirements. The EPA allows states to impose their own regulatory requirements that are more stringent than EPA’s, under Section 3009 of RCRA. These more stringent requirements may include a provision that prohibits a federally issued exclusion from taking effect in the state. As noted in the notice of proposed rulemaking, Ecology is expected to make a parallel delisting decision under their separate state authority. The EPA also notes that if the Petitioners transport the petitioned waste to or manage the waste in any state with delisting authorization or their own state-only delisting requirements, they VerDate Sep<11>2014 19:34 Apr 07, 2020 Jkt 250001 must obtain a delisting from that state before they can manage the waste as nonhazardous in that state. The EPA urges the Petitioners to contact the state regulatory authority in each state to or through which they may wish to ship their waste to determine the status of their waste under that state’s laws. V. Statutory and Executive Order Reviews Additional information about these statutes and Executive Orders can be found at https://www2.epa.gov/lawsregulations/laws-and-executive-orders. A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review 19679 significantly or uniquely affect small governments. The action imposes no new enforceable duty on any state, local, or tribal governments or the private sector. G. Executive Order 13132: Federalism This action 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. H. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This action is exempt from review by the Office of Management and Budget because it is a rule of particular applicability, not general applicability. The action approves a delisting petition under RCRA for the petitioned waste at a particular facility. This action does not have tribal implications as specified in Executive Order 13175. This action applies only to a particular facility on non-tribal land. Thus, Executive Order 13175 does not apply to this action. B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs I. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks This action is considered an Executive Order 13771 deregulatory action. This final rule provides meaningful burden reduction by allowing the Petitioners to manage a one-time amount of up to 20,100 cubic yards of material under RCRA Subtitle D management standards rather than the more stringent RCRA Subtitle C standards. This action will significantly reduce the costs associated with the onsite management, transportation and disposal of this waste stream by shifting its management from RCRA Subtitle C hazardous waste management to RCRA Subtitle D nonhazardous waste management. This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The health and safety risks of the petitioned waste were evaluated using the EPA’s Delisting Risk Assessment Software (DRAS), which considers health and safety risks to children. Use of the DRAS was described in section III.E of the proposed delisting. The technical support document and the user’s guide for DRAS are available at https:// www.epa.gov/hw/hazardous-wastedelisting-risk-assessment-software-dras. C. Paperwork Reduction Act This action 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 only applies to a particular facility. D. Regulatory Flexibility Act Because this rule is of particular applicability relating to a particular facility, it is not subject to the regulatory flexibility provision of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). F. Unfunded Mandates Reform Act This action does not contain any unfunded mandate as described in the Unfunded Mandates Reform Act (2 U.S.C. 1531–1538) and does not PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 J. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866. K. National Technology Transfer and Advancement Act This action does not involve technical standards as described by the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note). E:\FR\FM\08APR1.SGM 08APR1 19680 Federal Register / Vol. 85, No. 68 / Wednesday, April 8, 2020 / Rules and Regulations L. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, lowincome populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The EPA has determined that this action 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 EPA’s risk assessment, as described in section III.E in the proposed delisting, did not identify unacceptable risks from management of this material in an authorized or permitted RCRA Subtitle D solid waste landfill (e.g., municipal solid waste landfill or commercial/ industrial solid waste landfill). Therefore, the 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. Dated: February 28, 2020. Timothy Hamlin, Director, Land, Chemicals and Redevelopment Division. M. Congressional Review Act ■ This action is exempt from the Congressional Review Act (5 U.S.C. 801 et seq.) because it is a rule of particular applicability. List of Subjects in 40 CFR Part 261 Environmental protection, Hazardous waste, Recycling, and Reporting and recordkeeping requirements. For the reasons set out in the preamble, 40 CFR part 261 is amended as follows: PART 261—IDENTIFICATION AND LISTING OF HAZARDOUS WASTE 1. The authority citation for part 261 continues to read as follows: Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938. 2. In Table 1 of Appendix IX to Part 261 add an entry for ‘‘Emerald Kalama Chemical, LLC and Fire Mountain Farms, Inc.’’ in alphabetical order to read as follows: ■ Appendix IX to Part 261—Wastes Excluded Under §§ 260.20 and 260.22 TABLE 1—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES Facility Address lotter on DSKBCFDHB2PROD with RULES * Emerald Kalama Chemical, LLC and Fire Mountain Farms, Inc. VerDate Sep<11>2014 * Lewis County, Washington. 19:34 Apr 07, 2020 Jkt 250001 Waste description * * * * * Mixtures of hazardous wastewater treatment sludges, U019 (benzene) and U220 (toluene) and other non-hazardous solid wastes to be removed by Emerald Kalama Chemical, LLC and Fire Mountain Farms, Inc (Petitioners) pursuant to closure plans approved by the Washington State Department of Ecology and currently in storage in Fire Mountain Farm’s Burnt Ridge, Newaukum Prarie and Big Hanaford facilities in Lewis County, Washington. The maximum amount of wastes that may be managed pursuant to this exclusion is 4,700 cubic yards at the Burnt Ridge facility, 10,400 cubic yards at the Newaukum Prairie facility, and 5,000 cubic yards at the Big Hanaford facility, present at each facility as of the effective date of this exclusion, subject to the conditions below. Wastes managed under this exclusion must be disposed of in a Subtitle D landfill which is licensed, permitted, or otherwise authorized by a state to accept the delisted mixed material. The exclusion becomes effective as of April 8, 2020. 1. Delisting Levels: The constituent concentrations in a representative sample of the waste must not exceed the following levels. For each constituent, the delisting verification level is provided for Burnt Ridge, Newaukum Prarie and Big Hanaford, respectively. Total concentrations (mg/kg): Cobalt—94,400, 49,100, 89,900; TCLP Concentrations (mg/l in the waste extract): Barium—1,090, 498, 1,030; Cobalt—6.28, 2.92, 5.92; Copper—716, 332, 674; Nickel—408, 184, 384; Zinc—6,170, 2,820, 5,800; Benzaldehyde—1,760, 809, 1,660; Benzene—2.35, 1.08, 2.21; Benzoic Acid—70,400, 32,400, 66,300; Formic Acid—1,130, 519, 1,060; Benzyl Alcohol—8,800, 4,040, 8,290; Methanol—8,800, 4,040, 8,290; Phenol—5,280, 2,430, 4,970; Toluene—460, 211, 433. 2. Verification Testing: To verify that the waste does not exceed the delisting concentrations specified in Condition 1, the Petitioners must collect and analyze an extract using EPA SW–846 Method 1311 (TCLP extraction) from three representative composite samples for barium, benzaldehyde, benzoic acid, formic acid, and benzyl alcohol of the mixed IWBS/treatment solids wastes from each FMF facility prior to the start of closure activities to demonstrate that the constituents of concern in the petitioned waste do not exceed the concentrations of concern in Condition 1. If results from analysis of any composite sample do not reflect compliance with delisting exclusion limits, the EPA may require the Petitioners to conduct additional verification sampling to better define the volume of waste with waste constituent concentrations exceeding the delisting exclusion limits. The Petitioners must conduct all verification sampling according to a written sampling plan and associated quality assurance project plan which is approved in advance by the EPA that ensures analytical data are suitable for their intended use. Sampling data must be submitted to the EPA no later than 10 days after receiving the final results from the laboratory, or such later date as the EPA may agree to in writing. Any waste volume for which representative composite sampling does not reflect full compliance with the exclusion criteria in Condition 1 must continue to be managed as hazardous. The Petitioners must also submit to EPA a certification that all wastes satisfying the delisting concentrations in Condition 1 have been disposed of in a Subtitle D landfill which is licensed, permitted, or otherwise authorized by a state to accept the delisted mixed material of wastewater treatment sludge, and the quantity of waste disposed from each facility. This submission must be submitted to EPA within 60 days of completion of closure according to the approved closure plan. 3. Data Submittals: The Petitioners must submit the data obtained through verification testing and as required by other conditions of this rule, to the Director, Land, Chemical, & Redevelopment Division, U.S. EPA Region 10, 1200 6th Avenue Suite 155, M/S 15–H04, Seattle, Washington, 98070 or his or her equivalent. Electronic submission via electronic mail, physical electronic media (e.g., USB flash drive), or an electronic file transfer system is acceptable. The Petitioners must compile, summarize, and maintain for a minimum of five years, records of analytical data and waste disposal required by this rule. The Petitioners must make these records available for inspection. All data must be accompanied by a signed copy of the certification statement in 40 CFR 260.22(i)(12). If the Petitioners fail to submit the required data within the specified time or maintain the required records for the specified time, the EPA may, at its discretion, consider such failure a sufficient basis to reopen the exclusion as described in Condition 4. PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\08APR1.SGM 08APR1 Federal Register / Vol. 85, No. 68 / Wednesday, April 8, 2020 / Rules and Regulations 19681 TABLE 1—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES—Continued Facility Address Waste description 4. Reopener Language: (A) If, any time after disposal of the delisted waste, the Petitioners possess or are otherwise made aware of any data, including but not limited to leachate data or groundwater monitoring data from the final land disposal facility, relevant to the delisted waste indicating that any constituent is at a higher than the specified delisting concentration, then the Petitioners must report such data, in writing, to the Director, Land, Chemical, & Redevelopment Division, EPA Region 10 at the address above, or his or her equivalent, within 10 days of first possessing or being made aware of those data. (B) Based on the information described in Condition 4(A) and any other information received from any source, the EPA 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 EPA determines that the reported information does require Agency action, the EPA will notify the Petitioners in writing of the actions it believes are necessary to protect human health and the environment. The notice shall include a statement of the proposed action and a statement providing the Petitioners with an opportunity to present information as to why the proposed Agency action is not necessary or to suggest an alternative action. The Petitioners shall have 30 days from the date of the EPA’s notice to present the information. (D) If after 30 days the Petitioners present no further information or after a review of any submitted information, the EPA 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 EPA’s determination shall become effective immediately unless the EPA provides otherwise. * * * * * List of Subjects in 48 CFR Parts 202 and 252 [FR Doc. 2020–05910 Filed 4–7–20; 8:45 am] BILLING CODE 6560–50–P Government procurement. Jennifer Lee Hawes, Regulatory Control Officer, Defense Acquisition Regulations System. DEPARTMENT OF DEFENSE Defense Acquisition Regulations System Therefore, 48 CFR parts 202 and 252 are amended as follows: ■ 1. The authority citation for 48 CFR parts 202 and 252 continues to read as follows: 48 CFR Parts 201 and 252 [Docket DARS–2020–0001] Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. Defense Federal Acquisition Regulation Supplement: Technical Amendments 2. In section 202.101, revise the definition of ‘‘Departments and agencies’’ to read as follows: ■ Defense Acquisition Regulations System, Department of Defense (DoD). AGENCY: ACTION: 202.101 Final rule. DoD is making needed technical amendments to update the Defense Federal Acquisition Regulation Supplement (DFARS). SUMMARY: DATES: Effective April 8, 2020. Ms. Jennifer L. Hawes, Defense Acquisition Regulations System, OUSD(A&S)DPC(DARS), Room 3B941, 3060 Defense Pentagon, Washington, DC 20301–3060. Telephone 571–372–6115; facsimile 571–372–6094. FOR FURTHER INFORMATION CONTACT: This final rule amends the DFARS as follows: 1. In section 202.101, the definition of ‘‘Departments and agencies’’ is revised to update the list. 2. In section 252.225–7013, Duty-Free Entry, the address for notification of the Government customs team is updated. lotter on DSKBCFDHB2PROD with RULES SUPPLEMENTARY INFORMATION: VerDate Sep<11>2014 19:34 Apr 07, 2020 Jkt 250001 Definitions. * * * * * Departments and agencies, as used in DFARS, means the military departments and the defense agencies. The military departments are the Departments of the Army, Navy, and Air Force (the Marine Corps is a part of the Department of the Navy). The defense agencies are the Defense Advanced Research Projects Agency, the Defense Commissary Agency, the Defense Contract Management Agency, the Defense Counterintelligence and Security Agency, the Defense Finance and Accounting Service, the Defense Health Agency, the Defense Information Systems Agency, the Defense Intelligence Agency, the Defense Logistics Agency, the Defense Threat Reduction Agency, the Missile Defense Agency, the National GeospatialIntelligence Agency, the National Security Agency, the Space Development Agency, the United States Cyber Command, the United States Special Operations Command, the PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 * * United States Transportation Command, and the Washington Headquarters Service. * * * * * PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 252.225–7013 [Amended] 3. Amend section 252.225–7013 by— a. Removing clause date ‘‘(MAY 2016)’’ and adding ‘‘(MAR 2020)’’ in its place; and ■ b. In paragraph (e)(2)(iv)(A) removing ‘‘207 New York Avenue, Staten Island, New York, 10305–5013’’ and adding ‘‘201 Varick Street, Room 905C, New York, New York 10014’’ in its place. ■ ■ [FR Doc. 2020–06734 Filed 4–7–20; 8:45 am] BILLING CODE 5001–06–P DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 202, 204, 212, 232, and 252 [Docket DARS–2019–0019] RIN 0750–AK37 Defense Federal Acquisition Regulation Supplement: PerformanceBased Payments (DFARS Case 2019– D002) Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Final rule. AGENCY: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement SUMMARY: E:\FR\FM\08APR1.SGM 08APR1

Agencies

[Federal Register Volume 85, Number 68 (Wednesday, April 8, 2020)]
[Rules and Regulations]
[Pages 19676-19681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05910]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R10-RCRA-2018-0662; FRL-10006-64-Region 10]


Hazardous Waste Management System; Final Exclusion for 
Identifying and Listing Hazardous Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) (also, ``the Agency 
``or ``we'' in this preamble) is taking final action to grant three 
petitions submitted jointly by Emerald Kalama Chemical, LLC (Emerald) 
and Fire Mountain Farms, Inc (FMF) (Petitioners), in Lewis County, 
Washington to exclude (or ``delist'') a one-time amount up to 20,100 
cubic yards of U019 (benzene) and U220 (toluene) mixed material from 
the list of federal hazardous wastes as proposed on November 12, 2019. 
The EPA has decided to grant these petitions as proposed and under the 
same conditions based on an evaluation of waste-specific information 
provided by the Petitioners and a consideration of public comments 
received.

DATES: This final rule is effective on April 8, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. [EPA-R10-RCRA-2018-0662]. All documents in the docket are 
listed on the www.regulations.gov website. Although listed in the 
index, some information is not publicly available, e.g., Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available electronically through www.regulations.gov or in hard copy at 
the RCRA Records Center, 16th Floor, U.S. EPA, Region 10, 1200 6th 
Avenue, Suite 155, OAW-150, Seattle, Washington 98101. This facility is 
open from 8:30 a.m. to 4:00 p.m., Monday through Friday, excluding 
legal holidays. The EPA recommends you telephone Dr. David Bartus at 
(206) 553-2804 before visiting the Region 10 office. The public may 
copy material from the regulatory docket at 15 cents per page.

FOR FURTHER INFORMATION CONTACT: Dr. David Bartus, EPA, Region 10, 1200 
6th Avenue, Suite 155, OAW-150, Seattle, Washington 98070; telephone 
number: (206) 553-2804; email address: [email protected].
    As discussed below, Ecology is evaluating the petitions submitted 
by Emerald and FMF under state authority. Information on Ecology's 
action may be found at https://fortress.wa.gov/ecy/publications/SummaryPages/1804023.html.

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

I. Background
    A. What is a delisting petition?
    B. What regulations allow a waste to be delisted?
II. Emerald Kalama's and FMF's Petitions
    A. What wastes did petitioners petition epa to delist?
    B. What information was submitted in support of these petitions?
III. EPA's Evaluation and Public Comments
    A. What decision is EPA finalizing and why?
    B. Public Comments Received and EPA's Response
IV. Final Rule
    A. What are the terms of this exclusion?
    B. When is the delisting effective?
    C. How does this action affect the states?
V. Statutory and Executive Order Reviews

I. Background

A. What is a delisting petition?

    A delisting petition is a request from a generator to exclude waste 
from the list of hazardous wastes under RCRA regulations. In a 
delisting petition, the petitioner must show that waste generated at a 
particular facility does not meet any of the criteria for which EPA 
listed the waste as set forth in 40 CFR 261.11 and the background 
document for the waste. In addition, a petitioner must demonstrate that 
the waste does not exhibit any of the hazardous waste characteristics 
(that is, ignitability, reactivity, corrosivity, and toxicity) and must 
present sufficient information for us to decide whether factors other 
than those for which the waste was listed warrant retaining it as a 
hazardous waste. See 40 CFR 260.22, Section 3001(f) of RCRA, 42 U.S.C. 
6921(f) and the background document for a listed waste.
    A generator of a waste excluded from the hazardous waste lists of 
40 CFR part 261 subpart D remains obligated under RCRA to confirm that 
its waste remains nonhazardous based on the hazardous waste 
characteristics in order to continue to manage the waste as non-
hazardous.

B. What regulations allow a waste to be delisted?

    Under 40 CFR 260.20, 260.22, and 42 U.S.C. 6921(f), facilities may 
petition the EPA to remove their wastes from otherwise applicable 
hazardous waste storage, treatment and disposal requirements by 
excluding them from the lists of hazardous wastes contained in 40 CFR 
261.31 and 261.32. Specifically, 40 CFR 260.20 allows any person to 
petition the Administrator to modify or revoke any provision of 40 CFR 
parts 260 through 266, 268, and 273. 40 CFR 260.22 provides a generator 
the opportunity to petition the Administrator to exclude a waste from 
the lists of hazardous wastes on a ``generator specific'' basis.

II. Emerald Kalama's and FMF's Petitions

A. What wastes did petitioners petition EPA to delist?

    Emerald manufactures various organic chemicals used as artificial 
flavors and fragrances, food preservatives, plasticizers, and 
intermediates at their facility in Kalama, Washington. Most of the 
chemicals produced are derived from toluene or from the oxidation 
products of toluene, including benzoic acid and benzaldehyde. 
Additional products are produced as derivatives of benzoic acid and 
benzaldehyde. Products are typically purified by continuous or batch 
distillation. In conjunction with its manufacturing processes, Emerald 
operates an industrial wastewater treatment system, consisting of an 
anaerobic digestion process and an aerobic oxidation system, both of 
which are biological treatment systems very similar to municipal 
wastewater treatment systems. This treatment system produces industrial 
wastewater treatment plant biological solids (IWBS). As documented in 
the Petitioners' delisting petitions, the IWBS designates as U019 
(benzene) and U220 (toluene).
    FMF operates receiving, storage, treatment, and land application 
facilities in Lewis County, Washington for wastewater treatment plant 
treatment solids received from municipal, industrial, and private 
wastewater treatment plants. FMF is not permitted or otherwise 
authorized to manage, treat, or dispose of hazardous or dangerous 
wastes. Emerald contracted with FMF to land apply Emerald's IWBS 
beginning in October 1995. FMF mixed Emerald's IWBS with treatment 
solids from other facilities

[[Page 19677]]

and land applied or stored the mixed IWBS/treatment solids wastes at 
several FMF facilities. The RCRA rules require that listed hazardous 
wastes, when mixed with other materials, continue to be regulated as 
listed hazardous wastes (40 CFR 261.3). The mixed IWBS/treatment solids 
wastes are currently stored at three FMF facilities: Burnt Ridge 
located at 856 Burnt Ridge Road, Onalaska, Washington; Newaukum Prairie 
located at 349 State Route 508, Chehalis, Washington; and Big Hanaford 
located at 307 Big Hanaford Road, Centralia, Washington. Under a 
separate action,\1\ Ecology is requiring that Emerald and FMF remove 
these wastes from the three units according to closure plans approved 
pursuant to WAC 173-303-610.
---------------------------------------------------------------------------

    \1\ The Washington State Department of Ecology has entered into 
a litigation settlement (Docket Entry 3) with Fire Mountain Farms 
and Emerald-Kalama that, in part, requires closure of the units 
managing dangerous waste considered in this final exclusion. In this 
context, this final exclusion is a ``one-time'' delisting that will 
allow the fixed volume of wastes to be generated pursuant to closure 
of these three units as non-hazardous.
---------------------------------------------------------------------------

    The Petitioners have requested that up to 4,700 cubic yards at the 
Burnt Ridge facility, 10,400 cubic yards at the Newaukum Prairie 
facility, and 5,000 cubic yards at the Big Hanaford facility of IWBS/
treatment solids be excluded from the list of hazardous wastes.

B. What information was submitted in support of these petitions?

    FMF conducted an investigation of the wastes at each of the three 
storage units in September 2014.\2\ Three composite samples of the 
mixed IWBS/treatment solids wastes were collected from each storage 
unit. At Burnt Ridge and Newaukum Prairie, each composite sample 
consisted of nine grab samples collected from various depths. Each 
composite sample collected at Big Hanaford consisted of six grab 
samples collected from various depths.
---------------------------------------------------------------------------

    \2\ This investigation is documented in the first report in 
Appendix C of the three delisting petitions (Docket Entries 7-9).
---------------------------------------------------------------------------

    Each composite sample was analyzed for the following constituents 
or constituent groups: Volatile organic compounds (VOCs), semivolatile 
organic compounds (SVOCs), total metals, total cyanide, and total 
solids. The specific analytes included in the analysis are defined by 
the analytical method used for each group.
    In addition, two composite samples from the Newaukum Prairie 
storage unit and one composite sample each from the Burnt Ridge and Big 
Hanaford storage units were analyzed for the following parameters or 
constituent groups: Pesticides; polychlorinated biphenyl (PCB) 
Aroclors; dioxins and furans, reported as 2,3,7,8-
tetrachlorodibenzodioxin toxicity equivalence quotient; ammonia; Total 
Kjeldahl Nitrogen (TKN); pH, nitrite; and nitrate + nitrite (the 
concentration of nitrate was calculated by the analytical laboratory). 
Fourteen grab samples from the Newaukum Prairie storage unit and seven 
grab samples each from the Burnt Ridge and Big Hanaford storage units 
were analyzed for total fecal coliform.
    Emerald conducted additional sampling of the mixed IWBS/treatment 
solids wastes at each of the three storage units in August and October 
2017.\3\ Emerald performed the additional sampling based on the 
preliminary delisting levels and the September 2014 investigation. 
Samples from the storage units at Burnt Ridge, Newaukum Prairie, and 
Big Hanaford were analyzed for selected volatile organic compounds 
(acetone, benzene, methanol, and toluene), total solids, and pH. 
Samples from Big Hanaford were analyzed for total acrylonitrile; 
cobalt; 4-methylphenol; 2,4-dinitrotoluene; 2,6-dinitrotoluene; and 
naphthalene.
---------------------------------------------------------------------------

    \3\ Results of these sampling activities are documented in the 
third report in Appendix C of the three delisting petitions (Docket 
Entries 7-9).
---------------------------------------------------------------------------

III. EPA's Evaluation and Public Comments

A. What decision is EPA finalizing and why?

    The EPA is finalizing an exclusion for a one-time amount up to 
20,100 cubic yards of U019 (benzene) and U220 (toluene) mixed material 
from the list of federal hazardous wastes currently located at three 
FMF facilities, as proposed in our notice of proposed rulemaking 84 FR 
60975 (November 12, 2019). The wastes covered by this delisting are 
limited to 4,700 cubic yards of mixed materials at the Burnt Ridge 
facility, 10,400 cubic yards at the Newaukum Prairie facility, and 
5,000 cubic yards at the Big Hanaford facility, present at each 
facility as of the effective date of this exclusion and that are 
associated with closure of hazardous waste management units at three 
facilities owned and operated by FMF in accordance with closure plans 
approved by Ecology. The Petitioners petitioned EPA to exclude, or 
delist, these wastes because they believed that the petitioned wastes 
do not meet the criteria for which they were listed and that there are 
no additional constituents or factors which could cause the wastes to 
be hazardous waste. Review of this petition included consideration of 
the original listing criteria, as well as the additional factors 
required by the Hazardous and Solid Waste Amendments of 1984 (HSWA). 
See 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(2) through (4).
    The EPA proposed on November 12, 2019 (84 FR 60975) to exclude or 
delist the petitioned wastes at the three FMF facilities from the list 
of hazardous wastes in 40 CFR 261.31 and accepted public comment on the 
proposed rulemaking. The EPA considered all comments received, and for 
reasons discussed in both the proposal and this final action, has 
determined that the petitioned wastes should be excluded from 
regulation as hazardous waste under the specified conditions, as 
originally proposed.

B. Public Comments Received and EPA's Response

    The EPA received comments from seven individuals on the proposed 
rulemaking. Some commenters expressed support for the proposed 
exclusion while still raising some adverse comments. A brief summary of 
the adverse comments and EPA's responses to them are as follows.
    Commenter 1 (Docket entry Comment 0025). This commenter disagreed 
with the proposed rule on the basis that ``there is already enough 
hazardous waste being expelled into our environment, and that this one-
time amount of hazardous waste still pollutes our environment.'' The 
commenter also asserted that the proposed action ``goes against the 
hazardous waste regulations under [RCRA].'' EPA disagrees that the 
proposed delisting action will result in hazardous waste being expelled 
into the environment. The scope of this rulemaking is limited to a 
determination of whether the covered wastes may be appropriately 
managed as solid wastes and not hazardous wastes. In fact, this 
delisting, in conjunction with closure of the units under Ecology's 
dangerous waste program is expected to address commenter's concerns 
regarding releases from these units by ensuring that the wastes are 
placed in a secure, monitored landfill. Further, the proposed action is 
not in conflict with RCRA, but is an exercise of authority specifically 
provided for the delisting of hazardous wastes found in the 
implementing regulations at 40 CFR 260.20 and 22.
    Commenter 2 (Docket entry Comment 0026). This commenter questioned 
``[w]hat is to be gained for the environment by allowing these [two] 
companies to dump these chemicals in an improved landfill instead of 
cleaning up the land''. The commenter appears to misunderstand how the 
action that EPA

[[Page 19678]]

is finalizing relates to the obligation of the Petitioners to clean up 
the three sites where the waste is currently stored. As noted in 
Footnote 4 in the notice of proposed rulemaking, Ecology has determined 
that the units managing the candidate wastes at the three FMF 
facilities are illegally storing listed hazardous waste, and that in 
order to return to compliance with the state dangerous waste regulation 
and to protect the environment, each of the facilities must be closed 
under an approved dangerous waste closure plan. Based on the analysis 
presented in the proposed rule, EPA has determined that it is 
protective of human health and the environment to allow wastes from 
closure of these units to be disposed of in a monitored solid waste 
landfill. EPA acknowledges the commenter's concern regarding cleaning 
up the land affected by past management of these wastes, but notes that 
clean up obligations at these sites is beyond the scope of this 
rulemaking.
    This commenter also provided adverse comments on EPA's proposed 
``Strengthening Transparency in Regulatory Science'' regulation. This 
matter is outside of the scope of this final rulemaking.
    Commenter 3 (Docket entry Comment 0027). This commenter questioned 
the ethics and legitimacy of the exemption of the Petitioners' wastes 
from regulation as hazardous wastes and stressed the importance of laws 
being applied evenly to all parties. The commenter seems to assert that 
allowing for a delisting process offers some parties an unfair 
advantage and questioned whether ulterior motives were at play that 
``pose a greater risk to public safety than initially understood.'' EPA 
disagrees with the commenter's contention that this action is 
inconsistent with regulatory requirements. As explained in detail in 
the notice of proposed rulemaking, EPA is exercising regulatory 
authority that is potentially available to any petitioner whose wastes 
meet the criteria for delisting provided under the law. Additionally, 
as explained elsewhere in this final action, EPA believes that this 
delisting action, will provide a timely and protective pathway to 
closure of the three FMF facilities under the state dangerous waste 
program. Finally, the commenter noted that wastes in the three FMF 
facilities may pose ``a greater risk to public safety than initially 
understood.'' As discussed in detail in the notice of proposed 
rulemaking, EPA has carefully considered the risks of the waste using 
established risk evaluation methodology. Based on this analysis EPA has 
determined that excluding these wastes from the hazardous waste 
management system, subject to the conditions of this final rule, is 
fully protective of human health and the environment.
    Commenter 4 (Docket entry Comment 0028). This commenter identified 
hazards associated with toluene, as described in a safety data sheet 
for the chemical and questioned what benefit delisting over 20,000 
cubic yards of a mixture containing this chemical would have for the 
general public. As discussed in the notice of proposed rulemaking, 
characterization sampling and analysis as well as the risk analysis of 
the wastes using the Delisting Risk Assessment Software (DRAS) 
explicitly considered toluene and concluded that it was not present at 
levels that warranted retention of the mixed material as a listed 
waste. Whether or not a delisting benefits the public at large is not a 
criterion for consideration under the procedures set out at 40 CFR 
260.20 for delisting a listed hazardous waste. However, as explained in 
the proposed rulemaking, this action will provide a timely and 
protective pathway to closure of the three FMF facilities under the 
state dangerous waste program. Timely and protective closure of these 
facilities and responsible management of the wastes at issue in an 
appropriately regulated landfill is in the public interest.
    Commenter 5 (Docket entry Comment 0029). The commenter was 
supportive of the proposed delisting but expressed a preference that 
the Petitioners analyze five (as opposed to three) samples of the mixed 
IWBS/treatment solids wastes before the start of closure activities. 
EPA continues to believe that three samples of the materials in 
question will provide a reasonable demonstration of compliance with the 
delisting conditions. EPA proposed the sampling requirement as a 
condition of the exclusion in order to ensure analytical data are 
available for all delisting verification constituents, including a 
small number of constituents considered in the delisting analysis but 
not included in the original waste characterization database. Should 
results of the analysis of these additional samples demonstrate other 
than full compliance with the delisting conditions, the terms of the 
exclusion enable EPA to require the Petitioners to take appropriate 
action or to suspend the effectiveness of the delisting.
    Commenter 6 (Docket entry Comment 0030a). This commenter expressed 
concern regarding testing of groundwater or drinking water wells in the 
area north of the Newaukum Prarie site and raised several concerns 
about monitoring results and the extent of contamination at the three 
sites and made recommendations for future monitoring. These comments 
are beyond the scope of this rulemaking and are best addressed by 
Ecology. This commenter also stated that cobalt was considered only in 
the analysis of wastes at the Big Hanaford site--in fact, EPA 
considered cobalt at all three sites, as documented in Tables 3, 4 and 
5 in the notice of proposed rulemaking. This commenter also requested 
that only state or EPA supervised site workers should be used to gather 
material for compliance. EPA disagrees that such direct supervision of 
sample collection is necessary to assure compliance with the 
requirements of the delisting. EPA generally requires hazardous waste 
facilities to conduct their own delisting verification sampling and 
analysis, with agency oversight and review. EPA will carefully review 
the results of sampling and analysis required under the delisting rule 
to ensure the resulting data are appropriate for use in demonstrating 
compliance with requirements of the delisting exclusion.
    Commenter 7 (Docket entries Comment 0031 and 0032). This commenter 
submitted two sets of comments that are substantially similar. The 
commenter described what he believes to be environmental damage to 
plants in areas surrounding the Newaukum Prairie site, and groundwater 
contamination near the Newaukum and Burnt Ridge sites that the 
commenter attributes to Petitioner FMF's activities. The commenter 
urges additional and more current testing of groundwater to be 
performed in the area. The commenter also describes health impacts and 
nuisance issues that he believes are attributable to Petitioner FMF's 
activities at the Newaukum site. This commenter raised concerns about 
the operations and aeration of lagoons at Newaukum site. Finally, the 
commenter urges that the material at Newaukum should be disposed of at 
a landfill that is qualified and licensed to handle this material, and 
states that Petitioner FMF would prefer to land apply the materials in 
Lewis county, Washington. In taking this final action, Petitioners will 
be required to dispose of materials from the sites identified by this 
commenter in a RCRA Subtitle D landfill. Under the terms of this final 
exclusion, land application of the materials subject to this delisting 
is prohibited. However, other matters concerning ongoing operations at 
the Petitioner FMF's sites and groundwater or other sampling activities 
beyond sampling of the

[[Page 19679]]

delisted materials are outside of the scope of this rulemaking.

IV. Final Rule

A. What are the terms of this exclusion?

    EPA is finalizing this exclusion as proposed, including all of the 
associated conditions. As a key condition of this exclusion, the 
Petitioners must dispose of this waste in a subtitle D landfill 
licensed, permitted or otherwise authorized by a state, and will remain 
obligated to verify that the waste meets the allowable concentrations 
set forth here. This exclusion applies only to a maximum volume of 
waste and is effective only if all conditions contained in this rule 
are satisfied. Wastes in excess of these quantities or that otherwise 
do not meet the conditions of this exclusion must be managed as 
hazardous waste.

B. When is the delisting effective?

    This rule is effective April 8, 2020. The Hazardous and Solid Waste 
Amendments of 1984 amended section 3010 of RCRA, 42 U.S.C. 6930(b)(1), 
to allow rules to become effective in less than six months when the 
regulated community does not need the six-month period to come into 
compliance. This rule reduces rather than increases the existing 
requirements and, therefore, is effective immediately upon publication 
under the Administrative Procedures Act, pursuant to 5 U.S.C. 553(d).

C. How does this action affect the states?

    This exclusion is being issued under the federal RCRA delisting 
program. Therefore, only states subject to federal RCRA delisting 
provisions would be affected. This exclusion is not effective in states 
that have received authorization to make their own delisting decisions. 
Also, the exclusion may not be effective in states having a dual system 
that includes federal RCRA requirements and their own requirements. The 
EPA allows states to impose their own regulatory requirements that are 
more stringent than EPA's, under Section 3009 of RCRA. These more 
stringent requirements may include a provision that prohibits a 
federally issued exclusion from taking effect in the state. As noted in 
the notice of proposed rulemaking, Ecology is expected to make a 
parallel delisting decision under their separate state authority. The 
EPA also notes that if the Petitioners transport the petitioned waste 
to or manage the waste in any state with delisting authorization or 
their own state-only delisting requirements, they must obtain a 
delisting from that state before they can manage the waste as 
nonhazardous in that state. The EPA urges the Petitioners to contact 
the state regulatory authority in each state to or through which they 
may wish to ship their waste to determine the status of their waste 
under that state's laws.

V. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is exempt from review by the Office of Management and 
Budget because it is a rule of particular applicability, not general 
applicability. The action approves a delisting petition under RCRA for 
the petitioned waste at a particular facility.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is considered an Executive Order 13771 deregulatory 
action. This final rule provides meaningful burden reduction by 
allowing the Petitioners to manage a one-time amount of up to 20,100 
cubic yards of material under RCRA Subtitle D management standards 
rather than the more stringent RCRA Subtitle C standards. This action 
will significantly reduce the costs associated with the on-site 
management, transportation and disposal of this waste stream by 
shifting its management from RCRA Subtitle C hazardous waste management 
to RCRA Subtitle D nonhazardous waste management.

C. Paperwork Reduction Act

    This action 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 only applies to a particular facility.

D. Regulatory Flexibility Act

    Because this rule is of particular applicability relating to a 
particular facility, it is not subject to the regulatory flexibility 
provision of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

F. Unfunded Mandates Reform Act

    This action does not contain any unfunded mandate as described in 
the Unfunded Mandates Reform Act (2 U.S.C. 1531-1538) and does not 
significantly or uniquely affect small governments. The action imposes 
no new enforceable duty on any state, local, or tribal governments or 
the private sector.

G. Executive Order 13132: Federalism

    This action 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.

H. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This action applies only to a particular 
facility on non-tribal land. Thus, Executive Order 13175 does not apply 
to this action.

I. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 because it is 
not economically significant as defined in Executive Order 12866, and 
because the EPA does not believe the environmental health or safety 
risks addressed by this action present a disproportionate risk to 
children. The health and safety risks of the petitioned waste were 
evaluated using the EPA's Delisting Risk Assessment Software (DRAS), 
which considers health and safety risks to children. Use of the DRAS 
was described in section III.E of the proposed delisting. The technical 
support document and the user's guide for DRAS are available at https://www.epa.gov/hw/hazardous-waste-delisting-risk-assessment-software-dras.

J. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

K. National Technology Transfer and Advancement Act

    This action does not involve technical standards as described by 
the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 
272 note).

[[Page 19680]]

L. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately 
high and adverse human health or environmental effects on minority 
populations, low-income populations, and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The 
EPA has determined that this action 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 EPA's risk 
assessment, as described in section III.E in the proposed delisting, 
did not identify unacceptable risks from management of this material in 
an authorized or permitted RCRA Subtitle D solid waste landfill (e.g., 
municipal solid waste landfill or commercial/industrial solid waste 
landfill). Therefore, the 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.

M. Congressional Review Act

    This action is exempt from the Congressional Review Act (5 U.S.C. 
801 et seq.) because it is a rule of particular applicability.

List of Subjects in 40 CFR Part 261

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

    Dated: February 28, 2020.
Timothy Hamlin,
Director, Land, Chemicals and Redevelopment Division.

    For the reasons set out in the preamble, 40 CFR part 261 is amended 
as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
1. The authority citation for part 261 continues to read as follows:

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


0
2. In Table 1 of Appendix IX to Part 261 add an entry for ``Emerald 
Kalama Chemical, LLC and Fire Mountain Farms, Inc.'' in alphabetical 
order 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
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Emerald Kalama Chemical, LLC     Lewis County, Washington.......  Mixtures of hazardous wastewater treatment
 and Fire Mountain Farms, Inc.                                     sludges, U019 (benzene) and U220 (toluene)
                                                                   and other non-hazardous solid wastes to be
                                                                   removed by Emerald Kalama Chemical, LLC and
                                                                   Fire Mountain Farms, Inc (Petitioners)
                                                                   pursuant to closure plans approved by the
                                                                   Washington State Department of Ecology and
                                                                   currently in storage in Fire Mountain Farm's
                                                                   Burnt Ridge, Newaukum Prarie and Big Hanaford
                                                                   facilities in Lewis County, Washington. The
                                                                   maximum amount of wastes that may be managed
                                                                   pursuant to this exclusion is 4,700 cubic
                                                                   yards at the Burnt Ridge facility, 10,400
                                                                   cubic yards at the Newaukum Prairie facility,
                                                                   and 5,000 cubic yards at the Big Hanaford
                                                                   facility, present at each facility as of the
                                                                   effective date of this exclusion, subject to
                                                                   the conditions below. Wastes managed under
                                                                   this exclusion must be disposed of in a
                                                                   Subtitle D landfill which is licensed,
                                                                   permitted, or otherwise authorized by a state
                                                                   to accept the delisted mixed material. The
                                                                   exclusion becomes effective as of April 8,
                                                                   2020.
                                                                  1. Delisting Levels: The constituent
                                                                   concentrations in a representative sample of
                                                                   the waste must not exceed the following
                                                                   levels. For each constituent, the delisting
                                                                   verification level is provided for Burnt
                                                                   Ridge, Newaukum Prarie and Big Hanaford,
                                                                   respectively. Total concentrations (mg/kg):
                                                                   Cobalt--94,400, 49,100, 89,900; TCLP
                                                                   Concentrations (mg/l in the waste extract):
                                                                   Barium--1,090, 498, 1,030; Cobalt--6.28,
                                                                   2.92, 5.92; Copper--716, 332, 674; Nickel--
                                                                   408, 184, 384; Zinc--6,170, 2,820, 5,800;
                                                                   Benzaldehyde--1,760, 809, 1,660; Benzene--
                                                                   2.35, 1.08, 2.21; Benzoic Acid--70,400,
                                                                   32,400, 66,300; Formic Acid--1,130, 519,
                                                                   1,060; Benzyl Alcohol--8,800, 4,040, 8,290;
                                                                   Methanol--8,800, 4,040, 8,290; Phenol--5,280,
                                                                   2,430, 4,970; Toluene--460, 211, 433.
                                                                  2. Verification Testing: To verify that the
                                                                   waste does not exceed the delisting
                                                                   concentrations specified in Condition 1, the
                                                                   Petitioners must collect and analyze an
                                                                   extract using EPA SW-846 Method 1311 (TCLP
                                                                   extraction) from three representative
                                                                   composite samples for barium, benzaldehyde,
                                                                   benzoic acid, formic acid, and benzyl alcohol
                                                                   of the mixed IWBS/treatment solids wastes
                                                                   from each FMF facility prior to the start of
                                                                   closure activities to demonstrate that the
                                                                   constituents of concern in the petitioned
                                                                   waste do not exceed the concentrations of
                                                                   concern in Condition 1. If results from
                                                                   analysis of any composite sample do not
                                                                   reflect compliance with delisting exclusion
                                                                   limits, the EPA may require the Petitioners
                                                                   to conduct additional verification sampling
                                                                   to better define the volume of waste with
                                                                   waste constituent concentrations exceeding
                                                                   the delisting exclusion limits. The
                                                                   Petitioners must conduct all verification
                                                                   sampling according to a written sampling plan
                                                                   and associated quality assurance project plan
                                                                   which is approved in advance by the EPA that
                                                                   ensures analytical data are suitable for
                                                                   their intended use. Sampling data must be
                                                                   submitted to the EPA no later than 10 days
                                                                   after receiving the final results from the
                                                                   laboratory, or such later date as the EPA may
                                                                   agree to in writing. Any waste volume for
                                                                   which representative composite sampling does
                                                                   not reflect full compliance with the
                                                                   exclusion criteria in Condition 1 must
                                                                   continue to be managed as hazardous. The
                                                                   Petitioners must also submit to EPA a
                                                                   certification that all wastes satisfying the
                                                                   delisting concentrations in Condition 1 have
                                                                   been disposed of in a Subtitle D landfill
                                                                   which is licensed, permitted, or otherwise
                                                                   authorized by a state to accept the delisted
                                                                   mixed material of wastewater treatment
                                                                   sludge, and the quantity of waste disposed
                                                                   from each facility. This submission must be
                                                                   submitted to EPA within 60 days of completion
                                                                   of closure according to the approved closure
                                                                   plan.
                                                                  3. Data Submittals: The Petitioners must
                                                                   submit the data obtained through verification
                                                                   testing and as required by other conditions
                                                                   of this rule, to the Director, Land,
                                                                   Chemical, & Redevelopment Division, U.S. EPA
                                                                   Region 10, 1200 6th Avenue Suite 155, M/S 15-
                                                                   H04, Seattle, Washington, 98070 or his or her
                                                                   equivalent. Electronic submission via
                                                                   electronic mail, physical electronic media
                                                                   (e.g., USB flash drive), or an electronic
                                                                   file transfer system is acceptable. The
                                                                   Petitioners must compile, summarize, and
                                                                   maintain for a minimum of five years, records
                                                                   of analytical data and waste disposal
                                                                   required by this rule. The Petitioners must
                                                                   make these records available for inspection.
                                                                   All data must be accompanied by a signed copy
                                                                   of the certification statement in 40 CFR
                                                                   260.22(i)(12). If the Petitioners fail to
                                                                   submit the required data within the specified
                                                                   time or maintain the required records for the
                                                                   specified time, the EPA may, at its
                                                                   discretion, consider such failure a
                                                                   sufficient basis to reopen the exclusion as
                                                                   described in Condition 4.

[[Page 19681]]

 
                                                                  4. Reopener Language: (A) If, any time after
                                                                   disposal of the delisted waste, the
                                                                   Petitioners possess or are otherwise made
                                                                   aware of any data, including but not limited
                                                                   to leachate data or groundwater monitoring
                                                                   data from the final land disposal facility,
                                                                   relevant to the delisted waste indicating
                                                                   that any constituent is at a higher than the
                                                                   specified delisting concentration, then the
                                                                   Petitioners must report such data, in
                                                                   writing, to the Director, Land, Chemical, &
                                                                   Redevelopment Division, EPA Region 10 at the
                                                                   address above, or his or her equivalent,
                                                                   within 10 days of first possessing or being
                                                                   made aware of those data.
                                                                  (B) Based on the information described in
                                                                   Condition 4(A) and any other information
                                                                   received from any source, the EPA 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 EPA determines that the reported
                                                                   information does require Agency action, the
                                                                   EPA will notify the Petitioners in writing of
                                                                   the actions it believes are necessary to
                                                                   protect human health and the environment. The
                                                                   notice shall include a statement of the
                                                                   proposed action and a statement providing the
                                                                   Petitioners with an opportunity to present
                                                                   information as to why the proposed Agency
                                                                   action is not necessary or to suggest an
                                                                   alternative action. The Petitioners shall
                                                                   have 30 days from the date of the EPA's
                                                                   notice to present the information.
                                                                  (D) If after 30 days the Petitioners present
                                                                   no further information or after a review of
                                                                   any submitted information, the EPA 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 EPA's determination
                                                                   shall become effective immediately unless the
                                                                   EPA provides otherwise.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2020-05910 Filed 4-7-20; 8:45 am]
 BILLING CODE 6560-50-P
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