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/ Thursday, October 09, 2008
[Federal Register: October 9, 2008 (Volume 73, Number 197)]
[Rules and Regulations]
[Page 59523-59528]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09oc08-18]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R06-RCRA-2008-0418; SW-FRL-8727-8]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Final Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: Environmental Protection Agency (EPA) is granting a petition
submitted by Lockheed Martin Aeronautics Company to exclude (or delist)
the sludge from its wastewater treatment plant generated by Lockheed
Martin Aeronautics Company in Fort Worth, Texas from the lists of
hazardous wastes. This final rule responds to the petition submitted by
Lockheed Martin Aeronautics Company to delist F019 sludge generated
from the facility's wastewater treatment plant.
After careful analysis and use of the Delisting Risk Assessment
Software (DRAS), EPA has concluded the petitioned waste is not
hazardous waste. This exclusion applies to 90 cubic yards per year of
the F019 sludge. Accordingly, this final rule excludes the petitioned
waste from the requirements of hazardous waste regulations under the
Resource Conservation and Recovery Act (RCRA) when it is disposed in a
Subtitle D Landfill.
DATES: Effective Date: October 9, 2008.
ADDRESSES: The public docket for this final rule is located at the
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas,
Texas 75202, and is available for viewing in EPA Freedom of Information
Act review room on the 7th floor from 8 a.m. to 4 p.m., Monday through
Friday, excluding Federal holidays. Call (214) 665-6444 for
appointments. The reference number for this docket is EPA-R06-RCRA-
2008-0418. The public may copy material from any regulatory docket at
no cost for the first 100 pages and at a cost of $0.15 per page for
additional copies.
FOR FURTHER INFORMATION CONTACT: Ben Banipal, Section Chief of the
Corrective Action and Waste Minimization Section, Multimedia Planning
and Permitting Division (6PD-C), Environmental Protection Agency Region
6, 1445 Ross Avenue, Dallas, Texas 75202.
For technical information concerning this notice, contact Wendy
Jacques, Environmental Protection Agency Region 6, 1445 Ross Avenue,
(6PD-F), Dallas, Texas 75202, at (214) 665-7395, or
jacques.wendy@epa.gov.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What action is EPA finalizing?
B. Why is EPA approving this action?
C. What are the limits of this exclusion?
D. How will Lockheed Martin Aeronautics Company manage the waste
if it is delisted?
E. When is the final delisting exclusion effective?
F. How does this final rule affect states?
II. Background
A. What is a delisting?
B. What regulations allow facilities to delist a waste?
C. What information must the generator supply?
III. EPA's Evaluation of the Waste Information and Data
A. What waste did Lockheed Martin Aeronautics Company petition
EPA to delist?
B. How much waste did Lockheed Martin Aeronautics Company
propose to delist?
C. How did Lockheed Martin Aeronautics Company sample and
analyze the waste data in this petition?
IV. Public Comments Received on the proposed exclusion
Who submitted comments on the proposed rule?
V. Statutory and Executive Order Reviews
I. Overview Information
A. What action is EPA finalizing?
After evaluating the petition, EPA proposed, on May 19, 2008, to
exclude the wastewater treatment plant sludge from the lists of
hazardous waste under 40 CFR 261.31 and 261.32 (see 70 FR 41358). EPA
is finalizing the decision to grant Lockheed Martin Aeronautics
Company's delisting petition to have its waste water treatment sludge
managed and disposed as non-hazardous waste provided certain
verification and monitoring conditions are met.
B. Why is EPA approving this action?
Lockheed Martin Aeronautics Company's petition requests a delisting
from the F019 waste listing under 40 CFR 260.20 and 260.22. Lockheed
Martin Aeronautics Company does not
[[Page 59524]]
believe that the petitioned waste meets the criteria for which EPA
listed it. Lockheed Martin Aeronautics Company also believes no
additional constituents or factors could cause the waste to be
hazardous. EPA's review of this petition included consideration of the
original listing criteria and the additional factors required by the
Hazardous and Solid Waste Amendments of 1984. See section 3001(f) of
RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4) (hereinafter all
sectional references are to 40 CFR unless otherwise indicated). In
making the final delisting determination, EPA evaluated the petitioned
waste against the listing criteria and factors cited in Sec.
261.11(a)(2) and (a)(3). Based on this review, EPA agrees with the
petitioner that the waste is non-hazardous with respect to the original
listing criteria. If EPA had found, based on this review, that the
waste remained hazardous based on the factors for which the waste as
originally listed, EPA would have proposed to deny the petition. EPA
evaluated the waste with respect to other factors or criteria to assess
whether there is a reasonable basis to believe that such additional
factors could cause the waste to be hazardous. EPA considered whether
the waste is acutely toxic, the concentration of the constituents in
the waste, their tendency to migrate and to bioaccumulate, their
persistence in the environment once released from the waste, plausible
and specific types of management of the petitioned waste, the
quantities of waste generated, and waste variability. EPA believes that
the petitioned waste does not meet the listing criteria and thus should
not be a listed waste. EPA's final decision to delist waste from
Lockheed Martin Aeronautics Company's facility is based on the
information submitted in support of this rule, including descriptions
of the wastes and analytical data from the Fort Worth, Texas facility.
C. What are the limits of this exclusion?
This exclusion applies to the waste described in the petition only
if the requirements described in 40 CFR part 261, Appendix IX, Table 1
and the conditions contained herein are satisfied.
D. How will Lockheed Martin Aeronautics Company manage the waste if it
is delisted?
The sludge from Lockheed Martin Aeronautics Company will be
disposed of in a RCRA Subtitle D landfill.
E. When is the final delisting exclusion effective?
This rule is effective October 9, 2008. The Hazardous and Solid
Waste Amendments of 1984 amended section 3010 of RCRA, 42 U.S.C.
6930(b)(1), allows rules to become effective less than six months after
the rule is published when the regulated community does not need the
six-month period to come into compliance. That is the case here because
this rule reduces, rather than increases, the existing requirements for
persons generating hazardous waste. This reduction in existing
requirements also provides a basis for making this rule effective
immediately, upon publication, under the Administrative Procedure Act,
pursuant to 5 U.S.C. 553(d).
F. How does this final rule affect states?
Because EPA is issuing this exclusion under the Federal RCRA
delisting program, only states subject to Federal RCRA delisting
provisions would be affected. This would exclude states which have
received authorization from EPA to make their own delisting decisions.
EPA allows states to impose their own non-RCRA regulatory
requirements that are more stringent than EPA's, under section 3009 of
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a
provision that prohibits a Federally issued exclusion from taking
effect in the state. Because a dual system (that is, both Federal
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's
waste, EPA urges petitioners to contact the State regulatory authority
to establish the status of their wastes under the State law.
EPA has also authorized some states (for example, Louisiana,
Oklahoma, Georgia, and Illinois) to administer an RCRA delisting
program in place of the Federal program; that is, to make state
delisting decisions. Therefore, this exclusion does not apply in those
authorized states unless that state makes the rule part of its
authorized program. If Lockheed Martin Aeronautics Company transports
the petitioned waste to or manages the waste in any state with
delisting authorization, Lockheed Martin Aeronautics Company must
obtain delisting authorization from that state before it can manage the
waste as non-hazardous in the state.
II. Background
A. What is a delisting petition?
A delisting petition is a request from a generator to EPA, or
another agency with jurisdiction, to exclude or delist from the RCRA
list of hazardous waste, certain wastes the generator believes should
not be considered hazardous under RCRA.
B. What regulations allow facilities to delist a waste?
Under Sec. Sec. 260.20 and 260.22, facilities may petition EPA to
remove their wastes from hazardous waste regulation by excluding them
from the lists of hazardous wastes contained in Sec. Sec. 261.31 and
261.32. Specifically, Sec. 260.20 allows any person to petition the
Administrator to modify or revoke any provision of 40 CFR parts 260
through 265 and 268. Section 260.22 provides generators the opportunity
to petition the Administrator to exclude a waste from a particular
generating facility from the hazardous waste lists.
C. What information must the generator supply?
Petitioners must provide sufficient information to EPA to allow EPA
to determine that the waste to be excluded does not meet any of the
criteria under which the waste was listed as a hazardous waste. In
addition, the Administrator must determine, where he/she has a
reasonable basis to believe that factors (including additional
constituents) other than those for which the waste was listed could
cause the waste to be a hazardous waste and that such factors do not
warrant retaining the waste as a hazardous waste.
III. EPA's Evaluation of the Waste Information and Data
A. What waste did Lockheed Martin Aeronautics Company petition EPA to
delist?
On February 21, 2006, Lockheed Martin Aeronautics Company
petitioned EPA to exclude from the lists of hazardous wastes contained
in Sec. 261.31, sludge (F019) generated from its facility located in
Forth Worth, Texas. The waste falls under the classification of listed
waste pursuant to Sec. 261.31.
B. How much waste did Lockheed Martin Aeronautics Company propose to
delist?
Specifically, in its petition, Lockheed Martin Aeronautics Company
requested that EPA grant a standard exclusion for 90 cubic yards per
year of sludge resulting from the treatment of waste waters from the
manufacturing processes at its facility.
C. How did Lockheed Martin Aeronautics Company sample and analyze the
waste data in this petition?
To support its petition, Lockheed Martin Aeronautics Company
submitted:
Analytical results of the toxicity characteristic leaching
procedure and total constituent analysis for volatile
[[Page 59525]]
and semi volatile organics, pesticides, herbicides, dioxins/furans,
PCBs and metals for six sludge samples;
Analytical results from multiple pH leaching of metals;
and
Descriptions of the wastewater treatment process.
IV. Public Comments Received on the Proposed Exclusion
Who submitted comments on the proposed rule?
No comments were received on the Proposed Rule.
V. 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 sections 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
section 203 of UMRA. Because this rule will affect only a particular
facility, this final 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 final rule does not have tribal implications,
as specified in Executive Order 13175, ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000). Thus,
Executive Order 13175 does not apply to this rule. This rule also is
not subject to Executive Order 13045, ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), because it is not economically significant as defined in
Executive Order 12866, and because the Agency does not have reason to
believe the environmental health or safety risks addressed by this
action present a disproportionate risk to children. The basis for this
belief is that the Agency used the DRAS program, which considers health
and safety risks to infants and children, to calculate the maximum
allowable concentrations for this rule. This rule is not subject to
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866. This rule does not involve technical
standards; thus, the requirements of section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do
not apply. As required by section 3 of Executive Order 12988, ``Civil
Justice Reform'', (61 FR 4729, February 7, 1996), in issuing this rule,
EPA has taken the necessary steps to eliminate drafting errors and
ambiguity, minimize potential litigation, and provide a clear legal
standard for affected conduct. The Congressional Review Act, 5 U.S.C.
801 et seq., as added by the Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides that before a rule may take
effect, the agency promulgating the rule must submit a rule report
which includes a copy of the rule to each House of the Congress and to
the Comptroller General of the United States. Section 804 exempts from
section 801 the following types of rules: (1) Rules of particular
applicability; (2) rules relating to agency management or personnel;
and (3) rules of agency organization, procedure, or practice that do
not substantially affect the rights or obligations of non-agency
parties 5 U.S.C. 804(3). EPA is not required to submit a rule report
regarding today's action under section 801 because this is a rule of
particular applicability.
Lists of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f)
Dated: October 1, 2008.
Bill Luthans,
Acting Director, Multimedia Planning and Permitting Division, Region 6.
0
For the reasons set out in the preamble, 40 CFR part 261 is proposed to
be amended as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
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 of Part 261 add the following waste stream
in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Waste Excluded Under Sec. Sec. 260.20 and
260.22
Table 1--Waste Excluded From Non-Specific Sources
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Facility Address Waste description
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* * * * * * *
Lockheed Martin Aeronautics Company.. Fort Worth, TX......... Sludge (EPA Hazardous Waste Number F019)
generated at a maximum rate of 90 cubic yards
per calendar year after October 9, 2008.
For the exclusion to be valid, Lockheed Martin
Aeronautics Company must implement a
verification testing program that meets the
following Paragraphs:
(1) Delisting Levels: All concentrations for
those constituents must not exceed the maximum
allowable concentrations in mg/l specified in
this paragraph.
Sludge Leachable Concentrations (mg/l):
Antimony--8.45; Arsenic--0.657; Barium--100.0;
Cadmium--1.00; Chromium--5.0; Chromium,
Hexavalent--5.0; Cobalt--1040; Copper--1810;
Cyanide--240; Lead--5.0; Mercury--0.20; Nickel--
1040; Selenium--1.0; Silver--5.0; Vanadium--
51.5; Zinc--15800; Acetone--40600;
Acetonitrile--766; Carbon Disulfide--4400;
Ethylbenzene--846; Methyl Ethyl Ketone--200.0;
Methyl Isobutyl Ketone--3610; Methylene
Chloride--6.16; Toluene--1180; Xylenes--745.
(2) Waste Holding and Handling:
[[Page 59526]]
(A) Waste classification as non-hazardous can
not begin until compliance with the limits set
in paragraph (1) for sludge has occurred for
two consecutive quarterly sampling events.
(B) If constituent levels in any sample taken by
Lockheed Martin Aeronautics Company exceed any
of the delisting levels set in paragraph (1)
for the sludge, Lockheed Martin Aeronautics
Company must do the following:
(i) notify EPA in accordance with paragraph (6)
and
(ii) manage and dispose the sludge as hazardous
waste generated under Subtitle C of RCRA.
(3) Testing Requirements:
Upon this exclusion becoming final, Lockheed
Martin Aeronautics Company may perform
quarterly analytical testing by sampling and
analyzing the sludge as follows:
(A) Quarterly Testing:
(i) Collect two representative composite samples
of the sludge at quarterly intervals after EPA
grants the final exclusion. The first composite
samples may be taken at any time after EPA
grants the final approval. Sampling should be
performed in accordance with the sampling plan
approved by EPA in support of the exclusion.
(ii) Analyze the samples for all constituents
listed in paragraph (1). Any composite sample
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.
(iii) Within thirty (30) days after taking each
quarterly sample, Lockheed Martin Aeronautics
Company will report its quarterly 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 or
sampling events, Lockheed Martin Aeronautics
Company can manage and dispose the non-
hazardous sludge according to all applicable
solid waste regulations.
(B) Annual Testing:
(i) If Lockheed Martin Aeronautics Company
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), Lockheed Martin
Aeronautics Company may begin annual testing as
follows: Lockheed Martin Aeronautics Company
must test two representative composite samples
of the sludge for all constituents listed in
paragraph (1) at least once per calendar year.
(ii) The samples for the annual testing shall be
a representative composite sample 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 Lockheed Martin
Aeronautics Company sludge are representative
for all constituents listed in paragraph (1).
(iii) 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.
(iv) The annual testing report should include
the total amount of waste in cubic yards
disposed during the calendar year.
(4) Changes in Operating Conditions: If Lockheed
Martin Aeronautics Company significantly
changes the process described in its petition
or starts any processes that generate(s) the
waste that may or could affect the composition
or type of waste generated (by illustration,
but not limitation, changes in equipment or
operating conditions of the treatment process),
it must notify EPA in writing and it may no
longer handle the wastes generated from the new
process as non-hazardous until the wastes meet
the delisting levels set in paragraph (1) and
it has received written approval to do so from
EPA.
Lockheed Martin Aeronautics Company must submit
a modification to the petition complete with
full sampling and analysis for circumstances
where the waste volume changes and/or
additional waste codes are added to the waste
stream.
(5) Data Submittals:
Lockheed Martin Aeronautics Company must submit
the information described below. If Lockheed
Martin Aeronautics Company 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).
Lockheed Martin Aeronautics Company must:
(A) Submit the data obtained through paragraph
(3) to the Chief, Corrective Action and Waste
Minimization Section, Multimedia Planning and
Permitting Division, U.S. Environmental
Protection Agency Region 6, 1445 Ross Ave.,
Dallas, Texas, 75202, within the time
specified. All supporting data can be submitted
on CD-ROM or some comparable electronic media.
(B) Compile records of analytical data from
paragraph (3), summarized, and maintained on-
site for a minimum of five years.
(C) Furnish these records and data when either
EPA or the State of Texas requests them for
inspection.
[[Page 59527]]
(D) Send along with all data a signed copy of
the following certification statement, to
attest to the truth and accuracy of the data
submitted:
``Under civil and criminal penalty of law for
the making or submission of false or fraudulent
statements or representations (pursuant to the
applicable provisions of the Federal Code,
which include, but may not be limited to, 18
U.S.C. 1001 and 42 U.S.C. 6928), I certify that
the information contained in or accompanying
this document is true, accurate and complete.
As to the (those) identified section(s) of this
document for which I cannot personally verify
its (their) truth and accuracy, I certify as
the company official having supervisory
responsibility for the persons who, acting
under my direct instructions, made the
verification that this information is true,
accurate and complete.
If any of this information is determined by EPA
in its sole discretion to be false, inaccurate
or incomplete, and upon conveyance of this fact
to the company, I recognize and agree that this
exclusion of waste will be void as if it never
had effect or to the extent directed by EPA and
that the company will be liable for any actions
taken in contravention of the company's RCRA
and CERCLA obligations premised upon the
company's reliance on the void exclusion.''
(6) Reopener:
(A) If, anytime after disposal of the delisted
waste Lockheed Martin Aeronautics Company
possesses or is otherwise made aware of any
environmental data (including but not limited
to leachate data or ground water monitoring
data) or any other data relevant to the
delisted waste indicating that any constituent
identified for the delisting verification
testing is at level higher than the delisting
level allowed by the Division Director in
granting the petition, then the facility must
report the data, in writing, to the Division
Director within 10 days of first possessing or
being made aware of that data.
(B) If either the quarterly or annual testing of
the waste does not meet the delisting
requirements in paragraph 1, Lockheed Martin
Aeronautics Company must report the data, in
writing, to the Division Director within 10
days of first possessing or being made aware of
that data.
(C) If Lockheed Martin Aeronautics Company fails
to submit the information described in
paragraphs (5), (6)(A) or (6)(B) or if any
other information is received from any source,
the Division Director will make a preliminary
determination as to whether the reported
information requires EPA action to protect
human health and/or the environment. Further
action may include suspending, or revoking the
exclusion, or other appropriate response
necessary to protect human health and the
environment.
(D) If the Division Director determines that the
reported information requires action by EPA,
the Division Director will notify the facility
in writing of the actions the Division Director
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 facility with an
opportunity to present information as to why
the proposed EPA action is not necessary. The
facility shall have 10 days from the date of
the Division Director's notice to present such
information.
(E) Following the receipt of information from
the facility described in paragraph (6)(D) or
(if no information is presented under paragraph
(6)(D)) the initial receipt of information
described in paragraphs (5), (6)(A) or (6)(B),
the Division Director will issue a final
written determination describing EPA actions
that are necessary to protect human health and/
or the environment. Any required action
described in the Division Director's
determination shall become effective
immediately, unless the Division Director
provides otherwise.
(7) Notification Requirements: Lockheed Martin
Aeronautics Company must do the following
before transporting the delisted waste. Failure
to provide this notification will result in a
violation of the delisting petition and a
possible revocation of the decision.
(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 one-time written notification, if it
ships the delisted waste into a different
disposal facility.
(C) Failure to provide this notification will
result in a violation of the delisting variance
and a possible revocation of the decision.
* * * * * * *
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[[Page 59528]]
[FR Doc. E8-24009 Filed 10-8-08; 8:45 am]
BILLING CODE 6560-50-P
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