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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-5525-3]

Hazardous Waste Management System; Identification and Listing of

Hazardous Waste; Proposed Exclusion

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule and request for comment.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to

grant a petition to Bekaert Steel Corporation (Bekaert) of Rogers,

Arkansas to exclude (or ``delist''), certain solid wastes generated at

its facility from the lists of hazardous wastes contained in 40 CFR

261.31 and 261.32 (hereinafter all sectional references are to 40 CFR

unless otherwise indicated). This action responds to a delisting

petition submitted under 40 CFR 260.20, which allows any person to

petition the Administrator to modify or revoke any provision of 40 CFR

Parts 260 through 266, 268 and 273, and under 40 CFR 260.22, which

specifically provides generators the opportunity to petition the

Administrator to exclude a waste on a ``generator specific'' basis from

the hazardous waste lists. This proposed decision is based on an

evaluation of waste-specific information provided by the petitioner. If

this proposed decision is finalized, the petitioned waste will be

conditionally excluded from the requirements of hazardous waste

regulations under the Resource Conservation and Recovery Act (RCRA).

DATES: The EPA is requesting public comments on this proposed decision.

Comments will be accepted until August 9, 1996. Comments postmarked

after the close of the comment period will be stamped ``late.''

Any person may request a hearing on this proposed decision by

filing a request with Jane N. Saginaw, Regional Administrator, whose

address appears below, by July 10, 1996. The request must contain the

information prescribed in 40 CFR 260.20(d).

ADDRESSES: Send three copies of your comments. Two copies should be

sent to William Gallagher, Delisting Program, Multimedia Planning and

Permitting Division (6PD-O), Environmental Protection Agency, Region 6,

1445 Ross Avenue, Dallas, Texas 75202. A third copy should be sent to

the Arkansas Department of Pollution Control and Ecology, P.O. Box

8913, 8001 National Drive, Little Rock, Arkansas 72219-8913. Identify

your comments at the top with this regulatory docket number: ``F-96-

ARDEL-BEKAERT.''

[[Page 32747]]

Requests for a hearing should be addressed to the Regional

Administrator, Region 6, Environmental Protection Agency, 1445 Ross

Avenue, Dallas, Texas 75202.

The RCRA regulatory docket for this proposed rule is located at the

Region 6, Environmental Protection Agency, 1445 Ross Avenue, Dallas,

Texas 75202 and is available for viewing in the EPA library on the 12th

floor from 8:30 a.m. to 4:00 p.m., Monday through Friday, excluding

Federal holidays. Call (214) 665-6444 for appointments. The docket may

also be viewed at the Arkansas Department of Pollution Control and

Ecology, 8001 National Drive, Little Rock, Arkansas 72219-8913. The

public may copy material from any regulatory docket at no cost for the

first 100 pages, and at $0.15 per page for additional copies.

FOR FURTHER INFORMATION, CONTACT: For technical information concerning

this notice, contact David Vogler, Delisting Program (6PD-O), Region 6,

Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202,

(214) 665-7428.

SUPPLEMENTARY INFORMATION:

I. Background

A. Authority

On January 16, 1981, as part of its final and interim final

regulations implementing Section 3001 of RCRA, the EPA published an

amended list of hazardous wastes from non-specific and specific

sources. This list has been amended several times, and is published in

Sec. 261.31 and Sec. 261.32. These wastes are listed as hazardous

because they typically and frequently exhibit one or more of the

characteristics of hazardous wastes identified in Subpart C of Part 261

(i.e., ignitability, corrosivity, reactivity, and toxicity) or meet the

criteria for listing contained in Sec. 261.11 (a)(2) or (a)(3).

Individual waste streams may vary, however, depending on raw

materials, industrial processes, and other factors. Thus, while a waste

that is described in these regulations generally is hazardous, a

specific waste from an individual facility meeting the listing

description may not be hazardous. For this reason, Sec. 260.20 and

Sec. 260.22 provide an exclusion procedure, allowing persons to

demonstrate that a specific waste from a particular generating facility

should not be regulated as a hazardous waste.

To have their wastes excluded, petitioners must show that wastes

generated at their facilities do not meet any of the criteria for which

the wastes were listed. See Sec. 260.22(a) and the background documents

for the listed wastes. In addition, the Hazardous and Solid Waste

Amendments (HSWA) of 1984 require the Agency to consider any factors

(including additional constituents) other than those for which the

waste was listed, if there is a reasonable basis to believe that such

additional factors could cause the waste to be hazardous. Accordingly,

a petitioner also must demonstrate that the waste does not exhibit any

of the hazardous waste characteristics (i.e., ignitability, reactivity,

corrosivity, and toxicity), and must present sufficient information for

the Agency to determine whether the waste contains any of the other

identified constituents at hazardous levels. See Sec. 260.22(a), 42

U.S.C. Sec. 6921(f), and the background documents for the listed

wastes. Although wastes which are ``delisted'' (i.e., excluded) have

been evaluated to determine whether or not they exhibit any of the

characteristics of hazardous waste, generators remain obligated under

RCRA to determine whether or not their waste remains non-hazardous

based on the hazardous waste characteristics.

In addition, residues from the treatment, storage, or disposal of

listed hazardous wastes and mixtures containing listed hazardous wastes

are also considered hazardous wastes. See Secs. 261.3 (a)(2)(iv) and

(c)(2)(i), referred to as the ``mixture'' and ``derived-from'' rules,

respectively. Such wastes are also eligible for exclusion and remain

hazardous wastes until excluded. On December 6, 1991, the U.S. Court of

Appeals for the District of Columbia vacated the ``mixture/derived

from'' rules and remanded them to the Agency on procedural grounds. See

Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). On March 3, 1992,

EPA reinstated the mixture and derived-from rules, and solicited

comments on other ways to regulate waste mixtures and residues (57 FR

7628). On December 21, 1995, the EPA proposed rules related to waste

mixtures and residues at 60 FR 66344 and invited public comment. These

references should be consulted for more information regarding mixtures

and residues.

B. Approach Used To Evaluate This Petition

Bekaert's petition requests a delisting for a listed hazardous

waste. In making the initial delisting determination, the 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, the EPA agreed

with the petitioner that the waste is non-hazardous with respect to the

original listing criteria. (If the EPA had found, based on this review,

that the waste remained hazardous based on the factors for which the

waste was originally listed, the EPA would have proposed to deny the

petition.) The EPA then 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. The EPA considered whether the waste is acutely toxic, and

considered the toxicity of the constituents, 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.

For this delisting determination, the EPA used such information to

identify plausible exposure routes (i.e., ground water, surface water,

air) for hazardous constituents present in the petitioned waste. The

EPA determined that disposal in a Subtitle D landfill is the most

reasonable, worst-case disposal scenario for Bekaert's petitioned

waste, and that the major exposure route of concern would be ingestion

of contaminated ground water. Therefore, the EPA used a particular fate

and transport model to predict the maximum allowable concentrations of

hazardous constituents that may be released from the petitioned waste

after disposal and to determine the potential impact of the disposal of

Bekaert's petitioned waste on human health and the environment.

Specifically, the EPA used the maximum estimated waste volume and the

maximum reported extract concentrations as inputs to estimate the

constituent concentrations in the ground water at a hypothetical

receptor well downgradient from the disposal site. The calculated

receptor well concentrations (referred to as compliance-point

concentrations) were then compared directly to the current Maximum

Contaminant Levels (MCLs) promulgated under the Safe Drinking Water Act

(SWDA) or health-based levels derived from Verified Reference Doses

(RfDs). The value used for copper is an action level for treatment of a

water supply in lieu of a MCL (40 CFR Sec. 141.80).

The EPA believes that this fate and transport model represents a

reasonable worst-case scenario for disposal of the petitioned waste in

a landfill, and that a reasonable worst-case scenario is appropriate

when evaluating whether a waste should be relieved of the protective

management constraints of

[[Page 32748]]

RCRA Subtitle C. The use of a reasonable worst-case scenario results in

conservative values for the compliance-point concentrations and ensures

that the waste, once removed from hazardous waste regulation, will not

pose a threat to human health or the environment. Because a delisted

waste is no longer subject to hazardous waste control, the EPA is

generally unable to predict and does not presently control how a waste

will be managed after delisting. Therefore, the EPA does not currently

consider extensive site-specific factors when applying the fate and

transport model.

The EPA also considers the applicability of groundwater monitoring

data during the evaluation of delisting petitions. The EPA normally

requests groundwater monitoring data for wastes currently managed or

have ever been managed in a land based management unit. Groundwater

monitoring data provides significant additional information important

to fully characterize the potential impact (if any) of the disposal of

a petitioned waste on human health and the environment. In this case,

the EPA determined that the groundwater monitoring data was not

applicable to the evaluation of the petitioned waste. Specifically,

Bekaert currently disposes of the petitioned waste generated from its

filter press which is part of their wastewater treatment facility in an

off-site RCRA hazardous waste landfill (which is not owned/operated by

Bekaert). This landfill did not begin accepting the petitioned waste

generated by the filter press until September 1991. In other words, the

petitioned waste comprises a small fraction of the total waste managed

in the off-site units. The Agency, therefore, believes that any ground-

water monitoring data from the landfill would not be meaningful for an

evaluation of the specific effect of the petitioned waste on ground

water. However, the potential impact of these wastes on ground water is

predicted through the application of a fate and transport model.

Finally, the Hazardous and Solid Waste Amendments of 1984

specifically require the EPA to provide notice and an opportunity for

comment before granting or denying a final exclusion. Thus, a final

decision will not be made until all timely public comments (including

those at public hearings, if any) on today's proposal are addressed.

II. Disposition of Delisting Petition

Bekaert Steel Corporation, One Bekaert Drive, Rogers, Arkansas,

72757

A. Petition for Exclusion

Bekaert, located in Rogers, Arkansas, manufactures steel cord by

reducing the diameter of steel rods followed by electroplating and

further reduction. Bekaert petitioned the Agency to exclude its

wastewater treatment filter cake presently listed as EPA Hazardous

Waste No. F006--``Wastewater treatment sludges from electroplating

operations except from the following processes: (1) Sulfuric acid

anodizing of aluminum; (2) tin plating on carbon steel; (3) zinc

plating (segregated basis) on carbon steel; (5) cleaning/stripping

associated with tin, zinc, and aluminum plating on carbon steel; and

(6) chemical etching and milling of aluminum''. The listed constituents

of concern for EPA Hazardous Waste No. F006 are: cadmium, hexavalent

chromium, nickel and cyanide (complexed) (see 40 CFR part 261, Appendix

VII).

Bekaert petitioned the EPA to exclude its waste filter cake because

it does not believe that the waste meets the criteria for which it was

listed. Bekaert also believes that the waste does not contain any other

constituents that would render it hazardous. Review of this petition

included consideration of the original listing criteria, as well as the

additional factors required by the Hazardous and Solid Waste Amendments

(HSWA) of 1984. See Section 222 of HSWA, 42 U.S.C. Sec. 6921(f), and 40

CFR Sec. 260.22(d) (2)-(4). Today's proposal to grant this petition for

delisting is the result of the EPA's evaluation of Bekaert's petition.

B. Background

On September 11, 1995, Bekaert petitioned the EPA to exclude, from

the lists of hazardous wastes contained in 40 CFR Sec. 261.31 and

Sec. 261.32, its wastewater filter cake generated from its wastewater

treatment system. Bekaert subsequently provided additional information

to complete its petition.

In support of its petition, Bekaert submitted: (1) Descriptions of

its manufacturing and wastewater treatment processes, including

schematic diagrams; (2) a list of all raw materials and Material Safety

Data Sheets (MSDSs) for all trade name products used in the

manufacturing and waste treatment processes; (3) results from total

constituent analyses for fourteen metals including the eight Toxicity

Characteristic (TC) metals listed in Sec. 261.24 (i.e., the TC metals)

and antimony, beryllium, copper, nickel, thallium, and zinc from

representative samples of the petitioned waste; (4) results from the

Toxicity Characteristic Leaching Procedure (TCLP, SW-846 Method 1311)

for fourteen metals which include the eight TC metals, and antimony,

beryllium, copper, nickel, thallium, and zinc from representative

samples of the petitioned waste; (5) results from total constituent

analysis for total and reactive sulfide and cyanide for representative

samples of the petitioned waste; (6) results from total oil and grease

analyses from representative samples of the petitioned waste; (7) test

results and information regarding the hazardous characteristics of

ignitability, corrosivity, and reactivity; and (8) results from total

constituent analyses for certain volatile and semi-volatile organic

compounds from representative samples of the petitioned waste.

Bekaert manufactures steel cord which is sold to the tire

manufacturing industry for use in reinforcing tires. The steel cord is

produced from steel rod which has been reduced in size and

electroplated with a copper and zinc alloy.

The manufacturing processes contribute to the petitioned waste from

the following sources: water from the caustic scrubbers, water from the

hydrochloric acid scrubbers, water from the rinse used to remove soap

from wire, water from the cooling water bath following fluidized bed

heater, waste acid from the hydrochloric acid pickling, water from the

rinse following the zinc plating bath, water from the cooling bath

following induction heating, phosphoric acid from the phosphoric acid

bath, water from the phosphoric acid rinse bath and the spent oil/water

mixture (non-petroleum) used as a lubricant in the process.

Wastewaters from the manufacturing process are collected and stored

in four central tanks prior to discharge to the wastewater treatment

plant. The petitioned waste is generated from the wastewater treatment

plant and not directly from the manufacturing process. Wastewaters are

transferred from the holding tanks to a treatment tank where it is

neutralized with sodium hydroxide. After neutralization, one of several

methods are employed to remove solids: (1) A polymer is added to

promote flocculation. This wastewater is then sent to a sludge

thickening tank from which the sludge is sent to the filter press; (2)

the wastewater is routed to an ultrafiltration unit to remove solids

which are routed to the filter press; or (3) the wastewater is routed

to a clarifier where a polymer is added to aid in solids precipitation.

The solids are routed to the sludge thickening tank and then to the

filter press.

[[Page 32749]]

The petitioned waste is dropped from the filter press at the end of

the wastewater treatment process into a 18 x 8 x 5 foot hopper. The

F006 filter press cake is currently sent to a permitted hazardous waste

facility for disposal.

To collect representative samples, petitioners are normally

requested to divide the unit into four quadrants (not exceeding 10,000

square feet per quadrant) and randomly collect five full-depth core

samples from each quadrant. The five full-depth core samples are then

composited (mixed) by quadrant to produce a total of four composite

samples. See Test Methods for Evaluating Solid Wastes: Physical/

Chemical Methods, U.S. EPA, Office of Solid Waste and Emergency

Response, Publication SW-846 (third edition), November 1986, and

Petitions to Delist Hazardous Wastes--A Guidance Manual, (second

edition), U.S. EPA, Office of Solid Waste, (EPA/530-R-93-007), March

1993.

Bekaert submitted analytical results from five composite filter

cake samples collected from the hoppers at five different days taken at

intervals during a period between May 25, 1995, and July 10, 1995. This

was done to demonstrate that the waste composition did not vary with

time. In order account for spatial variability, grab samples were

collected from four randomly selected sample locations based on a grid

pattern that divided each hopper into ten grids. The entire depth

(approximately five feet) of each hopper was sampled. A composite of

the four grab samples was obtained to represent that day's sample.

Bekaert developed a list of constituents of concern from comparing

a list of all raw materials used in the plant that could potentially

appear in the petitioned waste with those found in 40 CFR Sec. 261,

Appendix VIII, as well as the following six constituents not found in

Appendix VIII: acetone, ethylbenzene, isophorone, 4-methyl-2-pentanone,

styrene, and total xylenes. Based on this review, it was not

anticipated that any of the Appendix VIII organic compounds or any of

the six additional organic compounds would be present in the petitioned

waste.

Using the list of constituents of concern, Bekaert analyzed the

five composite samples for the total concentrations (i.e., mass of a

particular constituent per mass of waste) of the eight TCLP metals,

antimony, beryllium, copper, nickel, thallium, zinc, selected volatile

and semi-volatile organic constituents, and oil and grease content.

These five samples were also analyzed to determine whether the waste

exhibited ignitable, corrosive, or reactive properties as defined,

respectively, under Sec. 261.21, Sec. 261.22, and Sec. 261.23,

including analysis for total constituent concentrations of cyanide,

sulfide, reactive cyanide, and reactive sulfide. These five samples

were also analyzed for TCLP concentrations (i.e., mass of a particular

constituent per unit volume of extract) of the eight TC metals, and

antimony, beryllium, copper, nickel, thallium, and zinc.

C. Agency Analysis

Bekaert used SW-846 Methods 7041, 7091, 7191, and 7196A, in

respective order, to quantify the total constituent concentrations and

leachable (TCLP) concentrations of antimony, beryllium, chromium, and

hexavalent chromium; and SW-846 Method 6010A was used to quantify total

constituent concentrations and leachable (TCLP) concentrations of

arsenic, barium, cadmium, copper, lead, nickel, selenium, silver,

thallium, and zinc in samples. SW-846 methods 7471 and 7470 were used

to determine total and leachable (in respective order) constituent

concentrations for mercury.

Using SW 846 Method 9070, Bekaert determined that the petitioned

waste had a maximum oil and grease content of 5700 mg/kg.

Characteristic testing was conducted on the samples of the

petitioned waste, including analysis for reactive cyanide and reactive

sulfide (SW-846 Methods 7.3.3.2 and 7.3.4.1, respectively),

ignitability (ASTM D-4982B), and corrosivity (SW-846 Method 9045).

Bekaert used SW-846 Methods 9012 and 4500 to quantify concentrations of

the total and complexed cyanide, respectively, in the samples. Bekaert

used Method 9030A to quantify the total constituent concentrations of

sulfide in the samples.

Table 1 presents the maximum total constituent and leachate

concentrations for the eight TC metals, antimony, beryllium, copper,

nickel, thallium, and zinc for the composite samples of the petitioned

waste. Table 1 also presents maximum reactive cyanide and reactive

sulfide concentrations.

The detection limits presented in Table 1 represent the lowest

concentrations quantifiable by Bekaert when using the appropriate SW-

846 or Agency-approved analytical methods to analyze its waste.

(Detection limits may vary according to the waste and waste matrix

being analyzed, i.e., the ``cleanliness'' waste matrices varies and

``dirty'' waste matrices may cause interferences, thus raising the

detection limits).

Bekaert used SW-846 Methods 8240 and 8270 to quantify the total

constituent concentrations of 30 volatile and 71 semi-volatile organic

compounds, respectively, in the waste samples. This suite of

constituents included all of the organic constituents listed in

Sec. 261.24 as well as other organic compounds commonly analyzed for in

hazardous waste samples. Bekaert used SW-846 Methods 8240, 8270, 8150A,

3510A, and 8080 to quantify the leachable concentrations of 11

volatile, 13 semi-volatile, 2 chlorinated herbicides, and 7 pesticides

(all organic compounds), respectively, in the waste samples, following

extraction by SW-846 Method 1311 (TCLP). This suite of constituents

included all of the organic constituents listed in Sec. 261.24. Table 2

presents the maximum total and leachate concentrations of all detected

organic constituents in Bekaert's waste and waste extract samples.

Lastly, on the basis of explanations and analytical data provided by

Bekaert, none of the analyzed samples exhibited the characteristics of

ignitability, corrosivity, or reactivity. See Sec. 261.21, Sec. 261.22

and Sec. 261.23.

Table 1.--Maximum Total Constituent and Leachate Concentrations (ppm)

\1\ Filter Press Waste

------------------------------------------------------------------------

Total TCLP

constituent leachate

Inorganic constituents analyses analyses

(mg/kg) (mg/l)

------------------------------------------------------------------------

Antimony........................................ 2

1 (mg/l) (mg/l)

------------------------------------------------------------------------

Antimony................................. 0.0036 0.006

Barium................................... 0.014 2.0

Copper................................... 0.13 1.3

Nickel................................... 0.012 0.1

Selenium................................. 0.00096 0.05

Silver................................... 0.002 0.2

Zinc..................................... 4.90 10.

------------------------------------------------------------------------

\1\ Using the maximum TCLP leachate level and based on a DAF of 96

calculated using the EPACML for an annual volume of 1,250 cubic yards.

\2\ See Docket Report on Health-Based Levels and Solubilities Used in

the Evaluation of Delisting Petitions, December 1994 located in the

RCRA public docket for today's notice.

The EPA also evaluated the potential hazard of methyl ethyl ketone,

4-methylphenol (p-cresol), and dichloromethane, the only organic

constituents detected in the total concentrations or TCLP extract of

samples of Bekaert's petitioned waste. Process information submitted by

Bekaert demonstrates that organic constituents are unlikely to be

present in the waste. Furthermore, the organic analysis submitted

indicated only trace levels of these three constituents. In any case,

the Agency notes that if the total levels (0.120, < 1.00, 0.008 mg/kg,

in respective order) of these trace constituents were evaluated using

the EPACML (conservatively assuming the total concentration of the

constituents would leach), the compliance levels (.00125, < 0.0104,

0.0000842 mg/l) at the theoretical compliance point would still be well

below health-based levels (20, 2, 0.005 mg/l, in respective order).

As reported in Table 1, reactive cyanide and reactive sulfide were

not detected in Bekaert's petitioned waste. The detection limits are

less than 0.050 mg/kg and less than 10 mg/kg, respectively. These

detection limit concentrations are below the EPA's interim standards of

250 and 500 ppm, respectively. See Interim Agency Thresholds for Toxic

Gas Generation, July 12, 1985, internal Agency Memorandum in the RCRA

public docket. Therefore, reactive cyanide and reactive sulfide levels

are not of concern.

Complexed cyanide was identified in one of the five samples

analyzed at a total concentration of 0.31 mg/kg and at a leachable

(TCLP extract) concentration of 0.030 mg/1. The leachable amount found

in the one sample of waste is below the appropriate health-base

[[Page 32751]]

number of 0.2 mg/1 (see docket) even without considering the dilution

effects of the fate and transport of the constituent. Therefore, since

Bekaert does not use cyanide in any of their processes and the

complexed cyanide was identified in only one sample at concentrations

below the health-based concentration, complexed cyanide is not

considered of concern.

The EPA concluded, after reviewing Bekaert's processes, that no

other hazardous constituents of concern, other than those tested for,

are likely to be present or formed as reaction products or by-products

in Bekaert's waste proposed for exclusion. In addition, on the basis of

explanations and analytical data provided by Bekaert, pursuant to

Sec. 260.22, the EPA concludes that the waste does not exhibit any of

the characteristics of ignitability, corrosivity, or reactivity. See

Sec. 261.21, Sec. 261.22, and Sec. 261.23, respectively.

During the evaluation of Bekaert's petition, the EPA also

considered the potential impact of the petitioned waste via non-ground

water routes (i.e., air emission and surface runoff). With regard to

airborne dispersion in particular, the EPA believes that exposure to

airborne contaminants from Bekaert's petitioned waste is unlikely. The

EPA evaluated the potential hazards resulting from the unlikely

scenario of airborne exposure to hazardous constituents released from

Bekaert's waste in an open landfill. The results of this worst-case

analysis indicated that there is no substantial present or potential

hazard to human health from airborne exposure to constituents from

Bekaert's petitioned waste. A description of the EPA's assessment of

the potential impact of Bekaert's waste, with regard to airborne

dispersion of waste contaminants, is presented in the RCRA public

docket for today's proposed rule.

The EPA also considered the potential impact of the petitioned

waste via a surface water route. The EPA believes that containment

structures at municipal solid waste landfills can effectively control

surface water run-off. Subtitle D regulations (see 56 FR 50978, October

9, 1991) prohibit pollutant discharges into surface waters.

Furthermore, the concentrations of any hazardous constituents dissolved

in the runoff will tend to be lower than the levels in the TCLP

leachate analyses reported in today's notice, due to the aggressive

acid medium used for extraction in the TCLP test. The EPA believes

that, in general, leachate derived from the waste is unlikely to enter

a surface water body directly without first travelling through the

saturated subsurface zone where further dilution and attenuation of

hazardous constituents will also occur. Leachable concentrations

provide a direct measure of the solubility of a toxic constituent in

water, and are indicative of the fraction of the constituent that may

be mobilized in surface water, as well as ground water. The reported

TCLP extraction data shows that the metals that might be released from

Bekaert's waste to surface water would be likely to remain undissolved

or leach in concentrations that would be below health-based levels of

concern. Finally, any transported constituents would be further diluted

in the receiving surface water body.

Based on the reasons discussed above, the EPA believes that

contamination of surface water through run-off from the waste disposal

area is very unlikely. Nevertheless, the EPA evaluated potential

impacts on surface water if Bekaert's waste were released from a

municipal solid waste landfill through run-off and erosion. See, the

RCRA public docket for today's proposed rule. The estimated levels of

the hazardous constituents of concern in surface water would be well

below health-based levels for human health, as well as below the EPA

Chronic Water Quality Criteria for aquatic organisms (USEPA, OWRS,

1987). The EPA, therefore, concluded that Bekaert's petitioned waste is

not a substantial present or potential hazard to human health and the

environment via the surface water exposure pathway.

E. Conclusion

The EPA has reviewed the sampling procedures used by Bekaert and

has determined that they satisfy the EPA criteria for collecting

representative samples. The data submitted in support of the petition

demonstrates, after careful evaluation, that constituents in Bekaert's

waste are present at the compliance point below the health-based levels

used in the delisting decision-making. The EPA believes that Bekaert

has successfully demonstrated that the petitioned waste is non-

hazardous.

The EPA, therefore, proposes to grant an exclusion to Bekaert Steel

Corporation, located in Rogers, Arkansas, for the petitioned waste

described in its petition as EPA Hazardous Waste No. F006. The EPA's

decision to exclude this waste is based on descriptions of the process

from which the petitioned waste is derived, descriptions of Bekaert's

wastewater treatment process, and characterization of the petitioned

waste. If the proposed rule is finalized, the petitioned waste will no

longer be subject to regulation under Parts 262 through 268 and the

permitting standards of Part 270.

If made final, the proposed exclusion will apply only to 1,250

cubic yards of petitioned waste generated annually, on a calendar year

basis, through operation of Bekaert's wastewater treatment filter

press. The facility would be required to obtain a new exclusion if

either its manufacturing or treatment processes are significantly

altered such that an adverse change in waste composition (for example,

significantly higher levels of hazardous constituents) or increase in

volume occur. Accordingly, the facility would be required to file a new

petition for the altered waste. Additionally, the facility must treat

waste generated either in excess of 1,250 cubic yards per year or

generated from changed processes as hazardous until a new exclusion is

granted.

Although management of the waste covered by this petition would be

removed from Subtitle C jurisdiction upon final promulgation of an

exclusion, the generator of a delisted waste must either treat, store,

or dispose of the waste in an on-site facility, or ensure that the

waste is delivered to an off-site storage, treatment, or disposal

facility, either of which is permitted, licensed, or registered by a

State to manage municipal or industrial solid waste. Alternatively, the

delisted waste may be delivered to a facility that beneficially uses or

reuses, or legitimately recycles or reclaims the waste, or treats the

waste prior to such beneficial use, reuse, recycling, or reclamation.

F. Annual Testing

If a final exclusion is granted, the petitioner will be required to

demonstrate, on an annual basis, that the characteristics of the

petitioned waste remain as originally described. In order to confirm

that the characteristics of the waste do not change significantly, the

facility must, on an annual basis, analyze a representative composite

sample for the constituents listed in Sec. 261.24 as well as antimony,

copper, nickel and zinc using the method specified therein. Sampling

and analysis must be completed by July 1 of each year. Each year's

analytical results (including quality control information) must be

compiled, certified according to 260.22(i)(12), maintained on-site for

a minimum of five years, and made available for inspection upon request

by any employee or representative of EPA or the State of Arkansas.

Failure to maintain the required records on site will be considered by

EPA, at its discretion, sufficient basis to revoke the exclusion to the

extent directed by EPA.

[[Page 32752]]

The purpose of this testing requirement is to ensure that the

quality of the petitioned waste remains as originally described by the

petitioner. The Agency believes that the data obtained will assist EPA

or the State in determining whether the petitioner's manufacturing

processes have been significantly altered, or if the waste is more

variable than originally described by the petitioner. The Agency also

believes that the annual retesting of the petitioned waste is not

overly burdensome to the facility and notes that these data will assist

the facility in complying with Sec. 262.11(c) which requires generators

to determine whether their wastes are hazardous, as defined by the

Toxicity Characteristic (see 40 CFR 261.24).

III. Limited Effect of Federal Exclusion

This proposed exclusion, if promulgated, would be issued under the

Federal (RCRA) delisting program. States, however, are allowed to

impose their own, non-RCRA regulatory requirements that are more

stringent than EPA's, pursuant to section 3009 of RCRA. These more

stringent requirements may include a provision which prohibits a

Federally-issued exclusion from taking effect in the State. Since a

petitioner's waste may be regulated under a dual system (both Federal

(RCRA) and State (non-RCRA) programs), petitioners are urged to contact

their State regulatory authorities to determine the current status of

their wastes under State law.

Furthermore, some States are authorized to administer a delisting

program in lieu of the Federal program, i.e., to make their own

delisting decisions. Therefore, this proposed exclusion, if

promulgated, would not apply in those authorized States. If the

petitioned waste will be transported to any State with delisting

authorization, Bekaert must obtain delisting authorization from that

State before the waste may be managed as nonhazardous in that State.

IV. Effective Date

This rule, if made final, will become effective immediately upon

final publication. The Hazardous and Solid Waste Amendments of 1984

amended Section 3010 of RCRA to allow rules to become effective in less

than six-months when the regulated community does not need the six-

month period to come into compliance. That is the case here, because

this rule, if finalized, would reduce the existing requirements for

persons generating hazardous wastes. In light of the unnecessary

hardship and expense that would be imposed on this petitioner by an

effective date six months after publication and the fact that a six-

month deadline is not necessary to achieve the purpose of Section 3010,

the EPA believes that this exclusion should be effective immediately

upon final publication. These reasons also provide a basis for making

this rule effective immediately, upon final publication, under the

Administrative Procedure Act, pursuant to 5 U.S.C.Sec. 553(d).

V. Regulatory Impact

Under Executive Order 12866, the EPA must conduct an ``assessment

of the potential costs and benefits'' for all ``significant''

regulatory actions. This proposal to grant an exclusion is not

significant, since its effect, if promulgated, would be to reduce the

overall costs and economic impact of the EPA's hazardous waste

management regulations. This reduction would be achieved by excluding

waste generated at a specific facility from the EPA's lists of

hazardous wastes, thereby enabling this facility to treat its waste as

non-hazardous. There is no additional impact due to today's rule.

Therefore, this proposal would not be a significant regulation, and no

cost/benefit assessment is required. The Office of Management and

Budget (OMB) has also exempted this rule from the requirement for OMB

review under Section (6) of Executive Order 12866.

VI. Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act, 5 U.S.C. Secs. 601-612,

whenever an agency is required to publish a general notice of

rulemaking for any proposed or final rule, it must prepare and make

available for public comment a regulatory flexibility analysis that

describes the impact of the rule on small entities (i.e., small

businesses, small organizations, and small governmental jurisdictions).

No regulatory flexibility analysis is required, however, if the

Administrator or delegated representative certifies that the rule will

not have any impact on any small entities.

This rule, if promulgated, will not have any adverse economic

impact on any small entities since its effect would be to reduce the

overall costs of the EPA's hazardous waste regulations and would be

limited to one facility. Accordingly, I hereby certify that this

proposed regulation, if promulgated, will not have a significant

economic impact on a substantial number of small entities. This

regulation, therefore, does not require a regulatory flexibility

analysis.

VII. Paperwork Reduction Act

Information collection and recordkeeping requirements associated

with this proposed rule have been approved by the Office of Management

and Budget (OMB) under the provisions of the Paperwork Reduction Act of

1980 (Pub. L. 96-511, 44 U.S.C. Sec. 3501 et seq.) and have been

assigned OMB Control Number 2050-0053.

VIII. Unfunded Mandates Reform Act

Under section 202 of the Unfunded Mandates Reform Act of 1995

(UMRA), Public Law 104-4, which was signed into law on March 22, 1995,

the EPA generally must prepare a written statement for rules with

Federal mandates that may result in estimated costs to State, local,

and tribal governments in the aggregate, or to the private sector, of

$100 million or more in any one year. When such a statement is required

for EPA rules, under section 205 of the UMRA, the EPA must identify and

consider alternatives, including the least costly, most cost-effective

or least burdensome alternative that achieves the objectives of the

rule. The EPA must select that alternative, unless the Administrator

explains in the final rule why it was not selected or it is

inconsistent with law. Before the EPA establishes regulatory

requirements that may significantly or uniquely affect small

governments, including tribal governments, it must develop under

section 203 of the UMRA a small government agency plan. The plan must

provide for notifying potentially affected small governments, giving

them meaningful and timely input in the development of the EPA

regulatory proposals with significant Federal intergovernmental

mandates, and informing, educating, and advising them on compliance

with the regulatory requirements. The UMRA generally defines a Federal

mandate for regulatory purposes as one that imposes an enforceable duty

upon state, local or tribal governments or the private sector. The EPA

finds that today's proposed delisting decision is deregulatory in

nature and does not impose any enforceable duty upon state, local or

tribal governments or the private sector. In addition, the proposed

delisting does not establish any regulatory requirements for small

governments and so does not require a small government agency plan

under UMRA section 203.

List of Subjects in 40 CFR Part 261

Environmental protection, Hazardous waste, Recycling, Reporting and

recordkeeping requirements.

[[Page 32753]]

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

Dated: June 11, 1996.

Jane N. Saginaw,

Regional Administrator.

For the reasons set out in the preamble, 40 CFR Part 261 is

proposed to be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

1. The authority citation for Part 261 continues to read as

follows:

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

2. In Table 2 of Appendix IX of Part 261 it is proposed to add the

following waste stream in alphabetical order by facility to read as

follows:

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

Sec. 260.22

Table 2.--Wastes Excluded From Specific Sources

----------------------------------------------------------------------------------------------------------------

Facility Address Waste description

----------------------------------------------------------------------------------------------------------------

* * * * * *

*

Bekaert Steel Corporation....... Rogers, Arkansas................ Wastewater treatment sludge (EPA Hazardous

Waste No. F006) generated from

electroplating operations (at a maximum

annual rate of 1,250 cubic yards to be

measured on a calendar year basis) after

[insert publication date of the final

rule]. In order to confirm that the

characteristics of the waste do not change

significantly, the facility must, on an

annual basis, before July 1 of each year,

analyze a representative composite sample

for the constituents listed in 261.24 as

well as antimony, copper, nickel, and zinc

using the method specified therein. The

annual analytical results, including

quality control information, must be

compiled, certified according to Sec.

260.22(i)(12) of this chapter, maintained

on site for a minimum of five years, and

made available for inspection upon request

of any employee or representative of EPA or

the State of Arkansas. Failure to maintain

the required documents on site will be

considered by EPA, at its discretion,

sufficient basis to revoke the exclusion to

the extent directed by EPA.

Notification Requirements:

Bekaert Steel Corporation must provide a one-

time written notification to any State

Regulatory Agency to which or through which

the delisted waste described above will be

transported for disposal at least 60 days

prior to the commencement of such

activities. Failure to provide such a

notification will result in a violation of

the delisting petition and a possible

revocation of the decision.

* * * * * *

*

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[FR Doc. 96-15884 Filed 6-24-96; 8:45 am]

BILLING CODE 6560-50-P