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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-6413-1]

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 submitted by BWX Technologies, Inc. (formerly Babcock

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

its Lynchburg, Virginia, facility from the lists of hazardous wastes

contained in Subpart D of Title 40 of the Code of Federal Regulations

Part 261. This action responds to a ``delisting'' petition submitted

pursuant to 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 pursuant to 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

excluded from the requirements of the hazardous waste regulations under

the Resource Conservation and Recovery Act (RCRA).

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

Comments will be accepted until September 20, 1999. 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 by August 19, 1999. The request must contain the

information prescribed in 40 CFR 260.20(d).

ADDRESSES: Two copies of any comments should be sent to David M.

Friedman, Technical Support Branch (3WC11), U.S. EPA Region III, 1650

Arch Street, Philadelphia, PA, 19103-2029.

Requests for a hearing should be addressed to John A. Armstead,

Director, Waste and Chemicals Management Division (3WC00), U.S. EPA

Region III, 1650 Arch Street, Philadelphia, PA, 19103-2029.

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

offices of U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA,

19103-2029, and is available for viewing from 8:30 a.m. to 5:00 p.m.,

Monday through Friday, excluding Federal holidays. Call David M.

Friedman at (215) 814-3395 for appointments. The public may copy

material from the regulatory docket at $0.15 per page. The docket for

this proposed rule is also located at the offices of the Campbell

County Administrator's Office, P.O. Box 100,

[[Page 42318]]

Main Street--Haberer Building 2nd floor, Rustburg, VA, 24588, and is

available for viewing from 8:30 a.m. to 5:00 p.m., Monday through

Friday, excluding holidays. Call Kathy Elliot at (804) 332-9619 for

appointments.

FOR FURTHER INFORMATION CONTACT: For technical information concerning

this document, contact David M. Friedman at the address above or at

(215) 814-3395.

SUPPLEMENTARY INFORMATION:

I. Background

A. Authority

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

regulations implementing Section 3001 of RCRA, EPA published an amended

list of hazardous wastes from non-specific and specific sources. This

list has been amended several times, and is published at 40 CFR 261.31

and 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 40 CFR Part 261 (i.e., ignitability,

corrosivity, reactivity, and toxicity) or meet the criteria for listing

contained in 40 CFR 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. For this reason, 40 CFR 260.20 and 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 its wastes excluded, a petitioner must show that wastes

generated at its facility do not meet any of the criteria for which the

wastes were listed. See 40 CFR 260.22(a)(1) and the background

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

Waste Amendments (HSWA) of 1984 require EPA 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. See 40 CFR

260.22(a)(2). Accordingly, a petitioner must demonstrate that the waste

does not exhibit any of the hazardous waste characteristics defined in

Subpart C of 40 CFR Part 261 (i.e., ignitability, corrosivity,

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

EPA to determine whether the waste contains any other constituents at

hazardous levels. 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 defined in

Subpart C of 40 CFR Part 261.

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 40 CFR 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 EPA on procedural grounds. 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). EPA plans to address issues related to waste mixtures and

residues in a future rulemaking.

B. Approach Used To Evaluate This Petition

BWX Technologies, Inc.'s (hereinafter, BWX Technologies') petition

requests a delisting for a listed hazardous waste. In making the

initial delisting determination, EPA evaluated the petitioned waste

against the listing criteria and factors cited in 40 CFR 261.11(a)(2)

and (a)(3). Based on this review, EPA tentatively agreed with the

petitioner, pending public comment, that the waste is non-hazardous

with respect to the original listing criteria. If EPA had found, based

on this review, that the waste remained hazardous based on the factors

for which the waste was originally listed, EPA would have proposed to

deny the petition.

EPA then evaluated the waste with respect to other factors or

criteria to assess whether there is a reasonable basis to believe that

other factors could cause the waste to be hazardous. EPA considered

whether the waste is acutely toxic, and considered the concentration of

the constituents in the waste, the toxicity of the constituents, their

tendency to migrate and to bioaccumulate, their persistence in the

environment if 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, EPA used such information

gathered to identify plausible exposure routes (i.e., ground water,

surface water, air) for hazardous constituents present in the

petitioned waste. Since BWX Technologies' waste is presently

landfilled, EPA determined that the major exposure route of concern

would be ingestion of contaminated ground water. Therefore, EPA used a

fate and transport model to predict the maximum concentrations of

hazardous constituents that may be released from the petitioned waste

and to determine the potential impact of BWX Technologies' petitioned

waste on human health and the environment. Specifically, EPA used the

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 were then compared

directly to the health-based levels at an assumed excess cancer risk of

10-6, which is the target risk level used in delisting

decision-making for the hazardous constituents of concern.

EPA believes that this fate and transport model represents a

reasonable worst-case scenario for the petitioned waste, and that a

reasonable worst-case scenario is appropriate when evaluating whether a

waste should be relieved of the protective management constraints of

RCRA Subtitle C (40 CFR Parts 260 through 266 and 268). 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, should not pose a threat to

human health or the environment.

EPA also considers the applicability of ground water monitoring

data during the evaluation of delisting petitions. In this case, EPA

determined that it would be inappropriate to request ground water

monitoring data because BWX Technologies currently disposes of the

petitioned waste off-site. For petitioners using off-site management,

EPA believes that, in most cases, the ground water monitoring data

would not be meaningful. Most commercial land disposal facilities

accept waste from numerous generators. Any ground water contamination

or leachate would be characteristic of the total volume of waste

disposed of at the facility. In most cases, EPA believes that it would

be impossible to isolate ground water

[[Page 42319]]

impacts associated with any one waste disposed of in a commercial

landfill. Therefore, EPA did not request ground water monitoring data

from BWX Technologies.

Based on its evaluation of BWX Technologies' delisting petition,

EPA developed a list of constituents for the verification testing

program. Proposed maximum allowable leachate concentrations for these

constituents were derived by back-calculating from the delisting

health-based levels through the proposed fate and transport model for a

landfill management scenario. These concentrations (i.e., ``delisting

levels'') are part of the proposed verification testing conditions of

the exclusion.

Like other facilities seeking exclusions, BWX Technologies'

exclusion (if granted) would be contingent upon the facility conducting

analytical testing of representative samples of the petitioned waste at

the Lynchburg, VA facility. This testing would be necessary to verify

that the treatment system is operating as demonstrated in the petition

submitted on September 30, 1994, and in subsequent submissions.

Specifically, the verification testing requirements would be

implemented to demonstrate that the facility will continue to generate

nonhazardous waste (i.e., waste that meets the EPA's verification

testing conditions).

EPA's proposed decision to delist waste from BWX Technologies'

facility is based on the information submitted in support of today's

proposed rule. This information includes descriptions of the waste

generation processes and the wastewater treatment system at the

Lynchburg, VA facility, and data from the analysis of representative

samples of the petitioned waste. HSWA specifically requires 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

BWX Technologies, Inc., Naval Nuclear Fuel Division, Mount Athos

Road, Lynchburg, Virginia 24505-0785.

A. Petition for Exclusion

Babcock & Wilcox acquired the Mt. Athos site and began operations

there in 1955. BWX Technologies, Inc. (an affiliate of the Babcock &

Wilcox Company) was created as the result of an internal corporate

reorganization on July 1, 1997. BWX Technologies, Naval Nuclear Fuel

Division, located in Lynchburg, Virginia, is engaged in the production

of nuclear fuel assemblies for the United States Department of Energy.

They manufacture nuclear fuels and reactor components for commercial

and military use. The BWX Technologies facility generates wastewaters

which are treated in an on-site wastewater treatment plant that

consists of four (4) discrete wastewater treatment systems. These are

the pickle acid, low-level radioactive, sanitary, and Lamella systems.

Filter cake solids were originally generated from the combined flows of

the pickle acid and the Lamella systems. However, these systems were

separated with the introduction of a microfiltration system to the

pickle acid system in 1992. The metal finishing operations, which

consist of cleaning, hydrofluoric and nitric acid pickling, and

anodizing, generate wastewaters that are treated in the pickle acid

treatment system. The treatment of these wastewaters in the pickle acid

treatment system ultimately generates a wastewater treatment sludge in

the form of a filter cake which is 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; (4) aluminum or zinc-aluminum plating 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 hazardous waste F006 is listed for cadmium, hexavalent

chromium, nickel and complexed cyanide (40 CFR Part 261, Appendix VII).

The filter cake from the pickle acid system is the only waste stream

that is the subject of the BWX Technologies' petition.

Review of this petition included consideration of the original

listing criteria, as well as the additional factors required by HSWA.

See Section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22.

B. Background

On September 30, 1994, BWX Technologies (then Babcock & Wilcox)

petitioned EPA to exclude from the lists of hazardous waste listed at

40 CFR 261.31 both past and currently generated filter cake solids

produced by its wastewater treatment facility from the treatment of

wastewaters in the pickle acid treatment system because it believed

that the petitioned waste did not meet any of the criteria under which

the waste was listed and that there were no additional constituents or

factors that would cause the waste to be hazardous. Subsequently, BWX

Technologies provided additional information to complete its petition.

Specifically, in its petition, BWX Technologies requested that EPA

grant an exclusion for its past generated filter cake consisting of 551

cubic yards per calendar year (1991 generation rate) and the currently

generated filter cake consisting of 247 cubic yards per calendar year

(1993 generation rate). BWX Technologies divided its request into these

two categories based on the installation of a microfiltration system in

1992 which minimized the volume of filter cake production from the

treatment of the pickle acid wastewaters. More recently, BWX

Technologies updated the filter cake generation rate. Based on

additional information submitted by BWX Technologies on December 17,

1998, the facility is currently generating filter cake solids at a

maximum rate of 267 cubic yards per calendar year. By letter dated

March 11, 1999, BWX Technologies requested that the delisting be based

on a waste volume of 300 cubic yards per calendar year to allow for an

increase in the waste generation rate. In support of its petition, BWX

Technologies submitted detailed descriptions of its manufacturing and

wastewater treatment process, a schematic diagram of the wastewater

treatment process, and analytical testing results for representative

samples of the petitioned wastes, including: (1) the hazardous

characteristics of ignitability and corrosivity; (2) total oil and

grease; (3) Toxicity Characteristic Leaching Procedure (TCLP, SW-846

Method 1311) analysis for volatile and semi-volatile organic compounds

and Toxicity Characteristic (TC) metals plus antimony, beryllium,

cobalt, copper, nickel, thallium, tin, vanadium and zinc; (4) total

constituent analysis for volatile and semi-volatile organic compounds

and TC metals plus antimony, beryllium, cobalt, copper, nickel,

thallium, tin, vanadium and zinc; (5) total cyanide, total sulfide,

total fluoride and total formaldehyde; and (6) TCLP analysis for

fluoride. BWX Technologies developed a list of constituents of concern

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

possibly appear in the petitioned waste with those found in 40 CFR Part

261, Appendix VIII and 40 CFR part 264, Appendix IX. Based on a

knowledge of their metal working processes and other processes at the

facility and of the treatment operation, BWX Technologies determined

that certain classes of chemical constituents would not be anticipated

to be present

[[Page 42320]]

in the filter cake. These chemicals include semi-volatile organic

constituents (except those constituents listed in 40 CFR 261.24),

pesticides, herbicides, dioxins and furans.

In June, 1990, the filter cake was found to contain trace levels of

special nuclear materials (i.e., uranium at typically less than 30

picocuries per gram). As of October 1991, this special nuclear material

contamination was eliminated from the filter cake. Because the past

generated filter cake was contaminated with special nuclear materials,

it was placed in drums and roll-off boxes and disposed of at a Nuclear

Regulatory Commission (NRC) approved hazardous waste landfill after the

NRC granted an exemption for filter cake as a low-level radioactive

material. Beginning in 1992, a Memtek Advanced Membrane Filtration

System has been utilized as part of the BWX Technologies' wastewater

treatment process for the pickling acid system. Currently generated

filter cake from the Memtek system is not contaminated by special

nuclear materials and is being disposed off-site at a RCRA Subtitle C

permitted facility.

In BWX Technologies' petition, the past generated filter cake

contains a radioactive component; therefore, it is classified as a

``mixed waste'' under RCRA. A ``mixed waste'' is defined as a waste

that contains both a radioactive component subject to the Atomic Energy

Act (AEA), and a hazardous component subject to RCRA. There are two

parts of the RCRA program that states implement. These are the RCRA-

base program (pre-HSWA) and HSWA. The hazardous components of mixed

wastes come under RCRA base program. Under Section 3006 of RCRA, EPA

may authorize qualified states to administer and enforce the RCRA

hazardous waste program within the state. When new, more stringent

federal requirements were promulgated or enacted, the state was

obligated to enact equivalent authority within specified time frames.

New federal requirements did not take effect in authorized states until

the state adopted the requirements as state law. Up until 1986, the

applicability of RCRA to mixed waste was unclear. To clarify the

applicability of RCRA to mixed waste, EPA issued a clarification notice

on July 3, 1986 (51 FR 24504). In that notice, EPA announced that the

hazardous component of mixed waste is subject to RCRA jurisdiction and

that the radioactive portion of the waste (source, special nuclear, and

by-product material) is subject to the Atomic Energy Act (AEA). EPA

also required states which had obtained RCRA base program authorization

prior to the July 3, 1986 notice to revise their programs to clarify

the regulatory status of mixed waste (i.e., to include the hazardous

component of mixed waste in their program definition of solid waste),

and to apply for EPA authorization to their revised program. The

Commonwealth of Virginia had been granted authorization to administer

the RCRA base program prior to July 3, 1986. However, as of this date,

Virginia has not been specifically authorized for mixed waste. In a

State which is authorized for the RCRA base program, but not

specifically authorized for mixed waste, this waste is not subject to

the Federal hazardous waste requirements until the State revises its

program and receives authorization specifically for mixed waste.

Therefore, EPA cannot consider for exclusion the past generated filter

cake solids at BWX Technologies.

BWX Technologies' Naval Nuclear Fuel Division includes several

operations which generate wastewaters which are influent to the pickle

acid treatment system. A brief description of these operations follows.

(1) Metal Processing--Metal components undergo a metal forming

operation and subsequent heat treatment. Solvents, including acetone,

xylene, and trichloroethylene (TCE), were used for pre- and post-

cleaning to remove various substances. Grit blasting is conducted to

remove the oxide film or scale which develops during heat treatment.

Prior to 1994, metal components were degreased using ultrasonic

detergent cleaning or TCE. In 1994, BWX Technologies eliminated the use

of xylene, and the use of acetone and TCE have been strictly limited.

None the these solvents (acetone, xylene and TCE) is currently used for

pre- or post-cleaning of metal components. Metal components are

currently cleaned with aqueous-based cleaning solutions and soaps.

Other metal processing operations include corrosion testing, welding,

and component inspection.

(2) Metal Pickling--Once cleaned and inspected, metal components

are pickled in an aqueous acid solution containing hydrofluoric acid

and nitric acid. The metal is then passed through cold and hot water

rinse baths.

(3) Metal Anodizing--The final metal components are anodized with a

caustic solution followed by water rinses.

(4) Copper Recovery--BWX Technologies conducts a copper dissolution

operation using a concentrated nitric acid solution. The process

combines the copper-laden spent nitric acid solution with dilute nitric

acid rinses. In the past, the resultant solution was treated in an on-

site copper recovery process. The copper was removed and sold as a

copper oxide product. Non-acidic waste solutions from the copper

recovery process were treated in the wastewater treatment plant (WWTP).

The copper recovery system ceased operation in 1993. Since December

1993 spent copper nitrate solutions have been collected and shipped

off-site as a hazardous waste for recovery.

(5) Hafnium and Inconel Pickling--Hafnium is pickled in the bath

used for metal components (after the metal components have been

pickled) or in a bath containing fresh nitric and hydrofluoric acid

solutions. Inconel (a corrosion-resistant alloy of nickel and chromium)

components are cleaned in an aqueous solution of hydrofluoric and

nitric acids, and subsequently rinsed in cold and hot water.

(6) Aluminum Pickling and Anodizing--Aluminum components are

pickled using a caustic solution, cleaned with an aqueous acid solution

consisting of nitric and hydrofluoric acids, and rinsed in cold and hot

water. Aluminum is anodized with a caustic solution followed by water

rinses.

(7) Other Wastewater Streams Entering the WWTP--Four (4)

intermittent wastewater streams have also been treated as part of the

pickle acid wastewater system. These included: (a) rinsewater from the

aluminum oxide grit blasting operation; (b) backwash of the softener,

demineralizer, and sand filter components of the deionized water supply

system; (c) effluent from the x-ray photography laboratory silver

recovery process; and (d) a low flow sub-surface creek (i.e., ground

water seep) intercepted and treated for pH adjustment. Of these four

(4) intermittent waste streams, the grit blasting operation is the only

one that now discharges to the pickle acid wastewater system. The sub-

surface creek, filter plant backwash and silver recovery flows are all

treated in the Lamella System. According to BWX Technologies, the three

(3) intermittent waste streams that are now treated in the Lamella

System did not have an impact on the pickle acid system, and the

removal of these streams has had no significant effect on the

characteristics of the filter cake.

(8) Acid clean line--This line was added in 1994 as part of a new

manufacturing process. It consists of a series of adjacent tanks

including hot detergent cleaning, acid cleaning and a variety of rinse

tanks. The acid tanks which utilize a mixture of nitric, hydrofluoric,

hydrochloric and phosphoric acids, as well as ferric chloride, are used

to clean Inconel metal

[[Page 42321]]

components. The spent acid mixtures are sent off-site for disposal. The

detergent and rinse tanks discharge to the pickle acid system.

(9) An industrial water jet cutting operation was added to the

manufacturing facility in 1995. The water jet cutter uses a high-

pressure jet of water/garnet sand to cut Inconel metal. Wastewater from

the cutter flows through a cyclone separator to remove sand and metal

fines, and then flows to the pickle acid system.

The current wastewater treatment system is a Memtek Advanced

Filtration System which was put into operation in 1992 to minimize the

volume of filter cake produced from the neutralization of the pickling

wastewaters. Bench-scale and pilot plant testing of the Memtek System

indicated that this system reduced the volume of waste generated by 75

percent. The actual reduction attributable to the Memtek System is

between 50 and 75 percent.

The pickling wastewaters are first held in a recirculated

equalization tank to reduce fluctuations in the fluoride concentration.

From the equalization tank, the pickling wastewaters flow to a 2,000-

gallon tank where lime is added for initial pH adjustment. The lime

causes the fluoride in the wastewater to precipitate. The bulk of the

neutralization or final adjustment to obtain a pH of 10.5 is made with

sodium hydroxide in a series of two 500-gallon reaction tanks. The

sodium hydroxide does not produce any additional neutralization sludge

since most sodium salts are soluble. The treated wastewater is

transferred to a 650-gallon concentration tank. The wastewater is

pumped out of the concentration tank and through a bank of

microfilters. Effluent from the filters discharges to a day tank and

then to an equalization tank. The equalization tanks are monitored for

pH and fluoride prior to reprocessing or discharge to an outfall.

Concentrated solids from the filter banks are returned to the

concentration tank. The concentration of solids in the concentration

tank gradually increases as more solids are added. A timed pump

transfers solids from the bottom of the concentration tank to the plate

and frame filter press. At the filter press, the slurry is dewatered to

produce a 50 to 60 percent solids filter cake.

C. Waste Analysis

BWX Technologies developed a list of analytical constituents based

on a review of facility processes, Material Safety Data Sheets for raw

materials and chemical additives used in the manufacturing process, and

recommendations contained in EPA delisting guidance (Petitions to

Delist Hazardous Waste: A Guidance Manual, 2nd Edition, EPA/530-R-93-

007, NTIS Publication Number PB 93-169 365, March 1993). For the

delisting petition, BWX Technologies collected four (4) weekly

composite samples of the filter cake solids. In order to ensure the

representativeness of samples collected in 1992 and to detect any

variability over time in the concentration of constituents of concern

within the filter cake, time-composite sampling was conducted. BWX

Technologies provided data which shows that the samples collected take

into account all wastes that are discharged to the pickle acid

treatment system.

Composite samples were collected beginning September 3, 1992, and

continuing through September 29, 1992. Each composite sample consisted

of bore hole grab samples taken directly from the filled filter press

troughs. The daily grab samples were collected from different filter

press troughs each day they were collected so that any variations

through the filter press were characterized in the weekly composite

sample. At the end of each week, the containers holding the daily grab

samples were emptied into a clean stainless steel bucket and mixed

thoroughly. Each sample was packed in an appropriately labeled

container. Composite samples for most analyses were prepared in the

field. However, samples for volatile organic compound (VOC) analysis

were sent to the analytical laboratory to be composited under

controlled conditions in order to prevent the loss of VOCs.

To supplement the data in its petition, BWX Technologies also

collected additional samples as part of an annual sampling program.

Composite samples of the filter cake were collected and analyzed for

the years 1993, 1994, 1995, 1996, 1997 and 1998.

To quantify the total constituent and leachate concentrations in

the four (4) composite samples that were analyzed in 1992, BWX

Technologies used SW-846 methods 7040 for antimony, 7061 for arsenic,

6010 for barium, 7091 for beryllium, 7130 for cadmium, 7190 for

chromium, 7201 for cobalt, 7210 for copper, 7421 for lead, 7470 and

7471 for mercury, 7520 for nickel, 6010 for selenium, 6010 for silver,

7841 for thallium, 7870 for tin, 7911 for vanadium, 7950 for zinc, 9010

for cyanide, 9030 for sulfide, 8010 for halogenated volatile organics,

8020 for aromatic volatile organics, and 8270 for semivolatile organic

compounds. BWX Technologies used EPA method 340.2 to determine fluoride

concentrations and NIOSH method 3500 to determine formaldehyde

concentrations. Using SW-846 method 9071, BWX Technologies determined

that the samples of the petitioned waste had a maximum oil and grease

content of less than one (1) percent. (If the total oil and grease

concentrations had been greater than or equal to one (1) percent, the

Oily Waste Extraction Procedure, Method 1330, would have been

required.) BWX Technologies also used these methods on the leachate

obtained using the Toxicity Characteristic Leaching Procedure or TCLP

(SW-846 method 1311), as described below, to determine leachable levels

of metals and selected volatile organic compounds.

Composite samples analyzed during the BWX Technologies' annual

sampling program were done using the same analytical methods as the

1992 composites with the following changes: concentrations for all

metal analytes were determined using method 6010 with the exception of

mercury (which continued to be determined using methods 7470 and 7471),

and volatile organic compounds which were determined using method 8260.

EPA has reviewed the sampling procedures used by BWX Technologies

and has determined that they satisfy EPA criteria for collecting

representative samples.

Table 1 presents the maximum total and leachate concentrations for

17 metals and fluoride, total cyanide and total sulfide. The detection

limits presented in Table 1 represent the lowest concentrations

quantifiable by BWX Technologies when using appropriate SW-846 methods

to analyze its waste. (Detection limits may vary according to the waste

and waste matrix being analyzed.)

Table 1.--Maximum Total Constituent and Leachate Concentrations \1\ WWTP

Filter Cake

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

Total TCLP

constituent leachate

Inorganic constituents analyses analyses

(mg/kg) (mg/nl)

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

Antimony.................................... 28.0 *0.7

Arsenic..................................... 0.13 0.017

Barium...................................... 120.0 0.46

Beryllium................................... <0.01 0.004

Cadmium..................................... 1.14 0.018

Chromium.................................... 1100.0 1.8

Cobalt...................................... 34.0 2.2

Copper...................................... 1850.0 79.3

Lead........................................ 12.3 0.22

Mercury..................................... 0.5 0.0036

Nickel...................................... 260.0 12.5

Selenium.................................... <0.05 <0.016

Silver...................................... 419 0.11

Thallium.................................... <0.1 **0.159

Tin......................................... 1170 0.107

Vanadium.................................... 18.5 <0.004

[[Page 42322]]

Zinc........................................ 130 1.8

Fluoride.................................... 11875.0 22.6

Cyanide (total)............................. <0.02 NA

Sulfide (total)............................. 14.1 NA

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

\1\ These levels represent the highest concentration of each constituent

found in any one sample. These levels do not necessarily represent the

specific levels found in one sample.

< Denotes that the constituent was not detected at the detection limit

specified in the table.

*Value represents 1 sample analysis out of 4 done in 1992. Since then,

process improvements have resulted in all values for antimony being

<0.069.

** Maximum TCLP concentration for this constituent occurred in a sample

that was not analyzed for total constituent concentration.

BWX Technologies also analyzed samples of the petitioned waste for

volatile and semivolatile organic compounds. Table 2 presents the

maximum total and leachate concentrations for all detected organic

constituents in BWX Technologies' waste samples.

Table 2.--Maximum Total Constituent and Leachate Concentrations \1\ WWTP

Filter Cake

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

Total TCLP

constit-uent leachate

Organic constituents analyses analyses

(mg/kg) (mg/l)

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

Acetone..................................... 0.181 0.062

Benzene..................................... 0.007 <0.005

Methyl Ethyl Ketone (2-Butanone)............ 0.017 <0.05

Methylene Chloride.......................... <0.01 *0.12

Toluene..................................... 0.008 <0.005

1,1,1-Trichloroethane....................... 0.004 <0.005

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

\1\ These levels represent the highest concentration of each constituent

found in any one sample. These levels do not necessarily represent the

specific levels found in one sample.

< Denotes that the constituent was not detected at the detection limit

specified in the table.

* Maximum TCLP concentration for this constituent occurred in a sample

that was not analyzed for total constituent concentration.

BWX Technologies submitted a signed Certification of Accuracy and

Responsibility statement found at 40 CFR 260.22(i)(12) as required for

the information contained in the petition submitted on September 30,

1994, as well as for the information contained in all subsequent

submissions.

EPA does not generally verify submitted test data before proposing

delisting actions. The sworn affidavit submitted with the petition

requires that the petitioner present truthful and accurate results.

Failure to do so can subject the petitioner to significant penalties,

including the possibility of fine and imprisonment.

D. EPA Evaluation

Under a landfill disposal scenario, the major exposure route of

concern for any hazardous constituents would be ingestion of

contaminated ground water. EPA, therefore, evaluated BWX Technologies'

petitioned waste using the modified EPA Composite Model for Landfills

(EPACML) which predicts the potential for ground water contamination

from wastes that are landfilled. See 56 FR 32993 (July 18, 1991), 56 FR

67197 (December 30, 1991), and the RCRA public docket for these notices

for a detailed description of the EPACML model, the disposal

assumptions, and the modifications made for delisting. This model,

which includes both unsaturated and saturated zone transport modules,

was used to predict reasonable worst-case contaminant levels in ground

water at a compliance point (i.e., a receptor well serving as a

drinking-water supply). Specifically, the model estimated the dilution/

attenuation factor (DAF) resulting from subsurface processes such as

three-dimensional dispersion and dilution from ground-water recharge

for a specific volume of waste. The DAFs generated using the EPACML

vary from a maximum of 100 for smaller annual volumes of waste (i.e.,

less than 1,000 cubic yards per year) to DAFs approaching ten for

larger annual volume wastes (i.e., 400,000 cubic yards per year). EPA

requests comments on the use of the EPACML as applied to the evaluation

of BWX Technologies' waste.

Typically, EPA uses the maximum annual waste volume to derive a

petition-specific DAF. The DAFs are currently calculated assuming an

ongoing process that generates wastes for 20 years. BWX Technologies'

maximum waste volume of 300 cubic yards per year corresponds to a DAF

of 100. EPA's evaluation of the BWX Technologies' filter cake using a

DAF of 100, a maximum waste volume of 300 cubic yards, and the maximum

reported TCLP concentrations (see Tables 1 and 2) yielded the following

compliance point concentrations (see Table 3).

Table 3.--EPACML: Calculated Compliance-Point Concentrations WWTP Filter

Cake

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

Compliance

point Levels of

Inorganic and organic constituents concentrations concern (mg/

(mg/l) \1\ l) \2\

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

Antimony.................................. 0.007 0.006

Arsenic................................... 0.00017 0.05

Barium.................................... 0.0046 2.0

Beryllium................................. 0.00004 0.004

Cadmium................................... 0.00018 0.005

Chromium.................................. 0.018 0.1

Cobalt.................................... 0.022 2.1

Copper.................................... 0.793 1.3

Lead...................................... 0.0022 0.015

Mercury................................... 0.000036 0.002

Nickel.................................... 0.125 0.7

Silver.................................... 0.0011 0.2

Thallium.................................. 0.00159 0.002

Tin....................................... 0.00107 21.0

Zinc...................................... 0.018 10.0

Fluoride.................................. 0.226 4.0

Acetone................................... 0.00062 4.0

Methylene Chloride........................ 0.0012 0.005

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

\1\ Using the maximum TCLP leachate concentration, based on a DAF of 100

for a maximum annual volume of 300 cubic yards.

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

the Evaluation of Delisting Petitions,'' May 1996 located in the RCRA

Public Docket for today's notice.

The compliance point concentrations presented in Table 3 are below

the current health-based levels (HBLs) for all inorganic and organic

constituents except for the metal antimony. EPA does not consider the

maximum reported TCLP concentration of 0.7 mg/l for antimony to be

representative of the BWX Technologies' currently generated filter

cake. EPA came to this conclusion because the one TCLP result that

exceeded the HBL occurred in only one (1) sample (out of four (4))

collected and analyzed by BWX Technologies in 1992. Because antimony

was detected in the method blank for this sample, there is not a high

degree of confidence in the reported concentration. In addition, since

1992, TCLP concentrations for antimony in the filter cake have been

below detection levels in all subsequent analyses for 1993, 1994, 1995,

1996, 1997 and 1998.

BWX Technologies performed total constituent analyses for cyanide

(total), but did not submit TCLP results. EPA has determined that TCLP

results are not required for this demonstration since cyanide is not

used in any of the processes at BWX Technologies, and since total

constituent analysis for cyanide (total) concentrations in the filter

cake have all been below the reported detection limit of 0.02 mg/kg.

BWX Technologies performed total constituent analyses for fluoride,

but

[[Page 42323]]

did not submit TCLP results until 1998. In evaluating the possibility

that fluoride concentrations could be present in sufficient

concentrations to be of concern, EPA initially evaluated BWX

Technologies' filter cake assuming the extreme worst case situation;

that is that all of the fluoride present in the filter cake would leach

out of the filter cake during a TCLP test (i.e., the fluoride present

in the filter cake was 100 percent leachable). While some of the

earlier total constituent analyses results for fluoride could,

hypothetically, result in an exceedence of the 4 mg/l HBL concentration

for fluoride when evaluating the ground water contamination pathway

using the modified EPACML model described earlier, EPA considered this

result to be highly unlikely because the fluoride in BWX Technologies'

filter cake is present as calcium fluoride (a very insoluble form).

Additionally, BWX Technologies has certified that waste minimization

efforts at its facility have reduced influent fluoride concentrations

to the wastewater treatment facility. Total fluoride concentrations for

the filter cake generated in more recent years are more than 50 percent

lower that past generation. Total fluoride concentrations in the

current filter cake have been less than 5000 mg/kg since 1995. At this

level, assuming the extreme worst case situation evaluated above (that

the fluoride is 100 percent leachable), and using a DAF of 100 based on

a maximum annual waste volume of 300 cubic yards, fluoride levels could

not exceed the HBL of 4.0 mg/l. To support this conclusion, BWX

Technologies submitted TCLP results for fluoride for the most recent

samples collected and analyzed in 1998. The results confirm that

leachable fluoride levels are below delisting levels of concern (see

the maximum compliance point concentration in Table 3).

For the other inorganic constituents, the maximum reported or

calculated leachate concentrations of arsenic, barium, beryllium,

cadmium, chromium, cobalt, copper, lead, mercury, nickel, silver,

thallium, tin and zinc in BWX Technologies' filter cake yielded

compliance point concentrations well below the health-based levels used

in delisting decision-making. EPA did not evaluate the mobility of the

remaining inorganic constituents (i.e., selenium, and vanadium) from

BWX Technologies' filter cake because they were not detected in the

leachate using the appropriate analytical test methods (see Table 1).

EPA believes that it is inappropriate to evaluate non-detectable

concentrations of a constituent of concern in its modeling efforts if

the non-detectable value was obtained using the appropriate analytical

method. If a constituent cannot be detected when using the appropriate

analytical method with an adequate detection limit, EPA assumes that

the constituent is not present and, therefore, does not present a

threat to human health or the environment.

EPA also evaluated the potential hazards of the organic

constituents detected in the TCLP leachate of BWX Technologies' filter

cake. The maximum reported leachate concentrations of acetone and

methylene chloride yielded compliance point concentrations well below

the health-based levels used in delisting decision-making.

After reviewing BWX Technologies' process information, EPA

concluded that no other hazardous constituents of concern, other than

those tested for, are likely to be present in the filter cake, and that

any migration of constituents from the waste would result in

concentrations below delisting health-based levels of concern. In

addition, on the basis of test results and information provided by BWX

Technologies pursuant to 40 CFR 260.22, EPA concludes that the

petitioned waste does not exhibit any of the characteristics of

ignitability, corrosivity, reactivity or toxicity.

During the evaluation of BWX Technologies' petition, EPA also

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

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

airborne dispersion in particular, EPA believes that exposure to

airborne contaminants from BWX Technologies' petitioned waste is

unlikely. Therefore, no appreciable air releases are likely from BWX

Technologies' waste under any likely disposal conditions. EPA evaluated

the potential hazards resulting from the unlikely scenario of airborne

exposure to hazardous constituents released from BWX Technologies'

waste in an open landfill. The results of this worst-case analysis

indicated that there is no substantial present or potential hazard to

human health and the environment from airborne exposure to constituents

from BWX Technologies' filter cake. A description of EPA's assessment

of the potential impact of BWX Technologies' waste, regarding airborne

dispersion of waste contaminants, is presented in the RCRA public

docket for today's proposed rule.

EPA also considered the potential impact of the petitioned waste

via a surface water route. EPA believes that containment structures at

municipal solid waste landfills can effectively control surface water

runoff, as the 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 run-

off will tend to be lower than the levels in the TCLP leachate analyses

reported in today's notice due to the aggressive acidic medium used for

extraction in the TCLP. EPA believes that, in general, leachate derived

from the wastes is unlikely to directly enter a surface water body

without first traveling through the saturated subsurface where dilution

and attenuation of hazardous constituents will also occur. Leachable

concentrations provide a direct measure of 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.

Based on the reasons discussed above, EPA believes that the

contamination of surface water through runoff from the waste disposal

area is very unlikely. Nevertheless, EPA evaluated the potential

impacts on surface water if BWX Technologies' waste were released from

a municipal solid waste landfill through runoff and erosion. (See

``Docket Report on Evaluation of Contaminant Releases to Surface Water

from BWX Technologies' Petitioned Waste,'' April 1999, in 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 EPA Recommended

Chronic Water Quality Criteria for aquatic organisms (63 FR 68354

(December 10, 1998)). EPA, therefore, concluded that BWX Technologies'

filter cake is not a substantial present or potential hazard to human

health and the environment via the surface water exposure pathway.

E. Conclusion

EPA believes that the descriptions of BWX Technologies' hazardous

waste process and analytical characterization, in conjunction with the

proposed verification testing requirements (as discussed later in this

notice), provide a reasonable basis to grant BWX Technologies' petition

for an exclusion of the filter cake. The EPA believes the data

submitted in support of the petition show BWX Technologies' process can

render the filter cake non-hazardous. EPA has reviewed the sampling

procedures used by BWX Technologies and has determined they satisfy EPA

[[Page 42324]]

criteria for collecting representative samples for purposes of

characterizing the filter cake. The data submitted in support of the

petition show that constituents in BWX Technologies' waste are present

below health-based levels used in the delisting decision-making. EPA

believes that BWX Technologies has successfully demonstrated that the

filter cake is non-hazardous.

EPA, therefore, proposes to grant an exclusion to BWX Technologies

for the filter cake from its pickle acid treatment system described in

its petition as EPA Hazardous Waste No. F006. If made final, the

proposed exclusion will apply only to 300 cubic yards of petitioned

waste generated annually, on a calendar year basis. The facility must

treat waste generated in excess of 300 cubic yards per year as

hazardous. If either the manufacturing or treatment processes are

altered such that an adverse change in waste composition occurs (e.g.,

higher levels of hazardous constituents are present in the waste), this

exclusion is no longer valid.

Although management of the waste covered by this petition would be

removed from Subtitle C jurisdiction upon final promulgation of an

exclusion, this exclusion applies only if this waste is disposed of in

a Subtitle D landfill which is permitted, licensed, or registered by a

State to manage municipal or industrial solid waste, a permitted

Subtitle C landfill or a Subtitle C landfill which is operating under

interim status.

F. Verification Testing Conditions

(1) Delisting Levels: All leachable concentrations for the

following constituents measured using SW-846 method 1311 (the TCLP)

must not exceed the following levels (mg/l).

(a) Inorganic constituents--Antimony-0.6; Arsenic-5.0; Barium-100;

Beryllium-0.4; Cadmium-0.5; Chromium-5.0; Cobalt-210; Copper-130; Lead-

1.5; Mercury-0.2; Nickel-70; Silver-5.0; Thallium-0.2; Tin-2100; Zinc-

1000; Fluoride-400.

(b) Organic constituents--Acetone-400; Methylene Chloride-0.5.

BWX Technologies must test its filter cake by determining the

levels of constituents in the TCLP leachate. Below these levels (also

known as the Maximum Allowable Leachate (MAL) Concentrations), the

filter cake would be considered non-hazardous. This exclusion is

effective when the final rule is signed by the Regional Administrator.

If the annual testing of the filter cake does not meet the delisting

levels or MALs described in Paragraph 1 of this Section, the facility

must notify the Agency according to the provisions in Paragraph 4 of

this Section. In such case, the exclusion will be suspended until a

decision is reached by the Agency. The facility shall provide sampling

results which support the rationale that the delisting exclusion should

not be withdrawn. EPA selected the set of inorganic and organic

constituents specified in Paragraph 1 of this Section after reviewing

information about the composition of the waste, descriptions of BWX

Technologies' treatment process, and previous test data provided for

the filter cake. EPA established the proposed delisting levels for this

Paragraph by back-calculating MAL concentrations from the health-based

levels (HBLs) for the constituents of concern using the EPACML model

previously described and a DAF of 100 (see, previous discussions in

Section D--Agency Evaluation). These delisting levels correspond to the

allowable levels measured in the TCLP extract of the waste.

(2) Verification testing schedule: BWX Technologies must analyze a

representative composite sample of the filter cake from the pickle acid

treatment system on an annual, calendar year basis using methods with

appropriate detection levels and quality control procedures. If the

level of any constituent measured in the sample of filter cake exceeds

the levels set forth in Paragraph 1 of this Section, then the waste is

hazardous and must be managed in accordance with Subtitle C of RCRA.

Data from the annual verification testing must be submitted to EPA

within 60 days of the sampling event.

(3) Changes in Operating Conditions: If BWX Technologies

significantly changes the manufacturing or treatment process described

in the petition, or the chemicals used in the manufacturing or

treatment process, BWX Technologies may not manage the filter cake

generated from the new process under this exclusion until it has met

the following conditions: (a) BWX Technologies must demonstrate that

the waste meets the delisting levels set forth in Paragraph 1 of this

Section; (b) it must demonstrate that no new hazardous constituents

listed in Appendix VIII of Part 261 have been introduced into the

manufacturing or treatment process; and (c) it must obtain prior

written approval from EPA to manage the waste under this exclusion.

This condition allows BWX Technologies the flexibility to modify its

process (e.g., changes in equipment or operating conditions). However,

if any significant change is made which may affect the composition of

the waste, BWX Technologies must demonstrate that the waste continues

to meet the delisting criteria and must obtain prior written approval

from EPA.

(4) Data Submittals: The data obtained under Paragraphs 2 and 3 of

this Section must be submitted to The Waste and Chemicals Management

Division, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA

19103. Records of operating conditions and analytical data must be

compiled, summarized, and maintained on site for a minimum of five

years and must be furnished upon request by EPA or the Commonwealth of

Virginia, and made available for inspection. Failure to submit the

required data within the specified time period or to maintain the

required records on site for the specified time period will be

considered by EPA, at its discretion, sufficient basis to revoke the

exclusion to the extent determined necessary by EPA. All data must be

accompanied by a signed copy of the certification statement set forth

in 40 CFR 260.22(i)(12) to attest to the truth and accuracy of the data

submitted. Although management of the wastes covered by this petition

would not be subject to 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 treatment, storage, or disposal

facility. In either case, the facility must be permitted, licensed, or

registered by a State to manage municipal or industrial solid waste.

The generator may also elect to continue to manage the delisted waste

in a facility with a permit or interim status under Subtitle C.

(5) Reopener:

(a) If BWX Technologies discovers that a condition at the facility

or an assumption related to the disposal of the excluded waste that was

modeled or predicted in the petition does not occur as modeled or

predicted, then BWX Technologies must report any information relevant

to that condition, in writing, to the Regional Administrator or his

delegate within 10 days of discovering that condition.

(b) Upon receiving information described in paragraph (a) of this

Section, regardless of its source, the Regional Administrator or his

delegate will determine whether the reported condition requires further

action. Further action may include repealing the exclusion, modifying

the exclusion, or other appropriate response necessary to protect human

health and the environment.

The purpose of Paragraph 5 of this Section is to require BWX

Technologies

[[Page 42325]]

to disclose new or different information related to a condition at the

facility or disposal of the waste if it had or has bearing on the

delisting. This will allow EPA to reevaluate the exclusion if new or

additional information is provided to the Agency by BWX Technologies

which indicates that information on which EPA's decision was based was

incorrect or circumstances have changed such that the information

evaluated for the delisting is no longer correct or would cause EPA to

deny the petition if then presented. Further, although this provision

expressly requires BWX Technologies to report differing site conditions

or assumptions used in the petition within 10 days of discovery, if EPA

discovers such information itself or from a third party, EPA will act

upon such information as appropriate. The language being proposed is

similar to those provisions found in RCRA regulations governing no-

migration petitions located at 40 CFR 268.6. EPA has recognized that

current delisting regulations contain no express procedure for

reopening a decision if additional information is received and although

it believes that it has the authority under RCRA and the Administrative

Procedures Act, 5 U.S.C. 551 (1978), et seq. (APA), to take this

action, EPA believes that a clear statement of its authority in the

context of delistings is merited in light of Agency experience. Until

such time as EPA codifies an express reopener provision in the

exclusion regulations, EPA will include language similar to that

presented above in delistings. EPA is considering the inclusion of a

more specific regulatory process both defining when a delisting should

be reopened and the result of reopening a granted exclusion and is

soliciting comments on this process. Since each delisting is waste-

specific and facility-specific or process-specific, EPA is currently

reluctant to adopt a rule which might inadvertently cause an immediate

repeal where specific circumstances would not merit so precipitous a

result. In the meantime, in the event that an immediate threat to human

health or the environment presents itself, EPA will continue to rely on

its authority under the APA to make a good cause finding to justify an

emergency rulemaking suspending notice and comment. APA Section 553(b).

(6) Notification Requirements: BWX Technologies 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 be deemed to be

a violation of this exclusion and may result in a revocation of the

decision.

III. Effect on State Authorizations

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

Federal RCRA delisting program. States, however, may impose more

stringent regulatory requirements than EPA, 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.

Because a petitioner's waste may be regulated under a dual system

(i.e., both Federal (RCRA) and State (non-RCRA) programs), petitioners

are urged to contact State regulatory authorities to determine the

current status of their wastes under the State laws.

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, may not apply in those authorized States. If the

petitioned waste will be transported to any State with delisting

authorization, BWX Technologies 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

such 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 a facility 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,

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 Procedures Act, 5 U.S.C. 553(d).

V. Regulatory Planning and Review (Executive Order 12866)

Under Executive Order 12866, EPA must determine whether a

regulatory action is ``significant'' and, therefore, subject to OMB

review and the other provisions of the Executive Order. A ``significant

regulatory action'' is one that is likely to result in a rule that may:

(1) have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities; (2) create a serious inconsistency or otherwise interfere

with an action taken or planned by another agency; (3) materially alter

the budgetary impact of entitlements, grants, user fees, or loan

programs or the rights and obligations of recipients thereof; or (4)

raise novel legal or policy issues arising out of legal mandates, the

President's priorities, or the principles set forth in Executive Order

12866.

Pursuant to Executive Order 12866 it has been determined that this

rule is not a ``significant regulatory action'' and is therefore not

subject to OMB review.

VI. Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act(5 U.S.C. 601 et seq., as

amended by the Small Business Regulatory Enforcement Fairness Act

(SBREFA) of 1996) 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

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

businesses, small organizations, and small governmental jurisdictions).

However, no regulatory flexibility analysis is required if the head of

an agency or delegated representative certifies the rule will not have

a significant economic impact on a substantial number of small

entities.

SBREFA amended the Regulatory Flexibility Act to require Federal

Agencies to provide a statement of the factual basis for certifying

that a rule will not have a significant economic impact on a

substantial number of small entities. This rule, if promulgated, will

not have an adverse economic impact on small entities since its effect

would be to reduce the overall costs of EPA's hazardous waste rules.

Accordingly, I hereby certify that this rule will not have a

significant economic impact on a substantial number of small entities.

This rule, therefore, does not require a regulatory flexibility

analysis.

[[Page 42326]]

VII. Paperwork Reduction Act

Information collection and record-keeping 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. 3501 et seq.) and have been assigned

OMB Control Number 2050-0053.

VIII. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public

Law 104-4, establishes requirements for Federal agencies to assess the

effects of their regulatory actions on State, local, and tribal

governments and the private sector. Under Section 202 of the UMRA, EPA

generally must prepare a written statement, including a cost-benefit

analysis, for proposed and final rules with ``Federal mandates'' that

may result in expenditures to State, local, and tribal governments, in

the aggregate, or to the private sector, of $100 million or more in any

one year. Before promulgating an EPA rule for which a written statement

is needed, Section 205 of the UMRA generally requires EPA to identify

and consider a reasonable number of regulatory alternatives and adopt

the least costly, most cost-effective or least burdensome alternative

that achieves the objectives of the rule. The provisions of Section 205

do not apply when they are inconsistent with applicable law. Moreover,

Section 205 allows EPA to adopt an alternative other than the least

costly, most cost-effective or least burdensome alternative if the

Administrator publishes with the final rule an explanation of why that

alternative was not adopted. Before EPA establishes any regulatory

requirements that may significantly or uniquely affect small

governments, including tribal governments, it must have developed under

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

provide for notifying potentially affected small governments, enabling

officials of affected small governments to have meaningful and timely

input in the development of EPA regulatory proposals with significant

Federal intergovernmental mandates, and informing, educating, and

advising small governments on compliance with the regulatory

requirements.

Today's proposed rule contains no Federal mandates (under the

regulatory provisions of Title II of the UMRA) for State, local, or

tribal governments or the private sector. The proposed delisting

decision is deregulatory, and imposes no enforceable duty on any State,

local or tribal governments or the private sector. Thus, today's rule

is not subject to the requirements of Sections 202 and 205 of the UMRA.

In addition, EPA has determined that this proposed rule contains no

regulatory requirements that might significantly or uniquely affect

small governments and, therefore, no small government agency plan is

required under Section 203 of the UMRA.

IX. Children's Health Protection

Executive Order 13045, ``Protection of Children from Environmental

Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies

to any rule that: (1) is determined to be ``economically significant''

as defined under E.O. 12866, and (2) concerns an environmental health

or safety risk that EPA has reason to believe may have a

disproportionate effect on children. If the regulatory action meets

both criteria, the Agency must evaluate the environmental health or

safety effects of the planned rule on children, and explain why the

planned regulation is preferable to other potentially effective and

reasonably feasible alternatives considered by the Agency.

This proposed rule is not subject to Executive Order 13045 because

it is not economically significant as defined in E.O. 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.

X. Intergovernmental Partnership

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a State, local

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting with these governments, Executive Order 12875 requires EPA

to provide to the Office of Management and Budget a description of the

extent of EPA's prior consultation with representatives of affected

State, local and tribal governments, the nature of their concerns, any

written communications from the governments, and a statement supporting

the need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of State, local and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's proposed rule does not create a mandate on State, local or

tribal governments. The proposed rule does not impose any enforceable

duties on these entities. Accordingly, the requirements of Section 1(a)

of Executive Order 12875 do not apply.

XI. National Technology Transfer and Advancement Act of 1995

Section 12(d) of the National Technology Transfer and Advancement

Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272)

directs EPA to use voluntary consensus standards in its regulatory

activities unless to do so would be inconsistent with applicable law or

otherwise impractical. Voluntary consensus standards are technical

standards (e.g., materials specifications, test methods, sampling

procedures, and business practices) that are developed or adopted by

voluntary consensus standards bodies. The NTTAA directs EPA to provide

Congress, through OMB, explanations when the Agency decides not to use

available and applicable voluntary consensus standards.

This rulemaking does not establish any new technical standards and

thus, the Agency has no need to consider the use of voluntary consensus

standards in developing this proposed rule.

XII. Consultation and Coordination with Indian Tribal Governments

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting with these governments,

Executive Order 13084 requires EPA to provide to the Office of

Management and Budget, in a separately identified section of the

preamble to the rule, a description of the extent of EPA's prior

consultation with representatives of affected tribal governments, a

summary of the nature of their concerns, and a statement supporting the

need to issue the regulation. In addition, Executive Order 13084

requires EPA to develop an effective process permitting elected

officials and other representatives of Indian tribal governments ``to

provide meaningful and timely input in the development of regulatory

policies on matters that significantly or uniquely affect their

communities.''

[[Page 42327]]

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. There is no impact to tribal

governments as the result of today's proposed delisting decision.

Accordingly, the requirements of Section 3(b) of Executive Order 13084

do not apply to this proposed rule.

List of Subjects in 40 CFR Part 261

Environmental protection, Hazardous waste, Recycling, Reporting and

recordkeeping requirements.

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

Dated: July 26, 1999.

Stanely Laskowski,

Acting Regional Administrator, Region III.

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. Table 1 of Appendix IX of Part 261 is amended to add the

following waste stream in alphabetical order by facility to read as

follows:

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

260.22

Table 1.--Wastes Excluded From Non-Specific Sources

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

Facility Address Waste description

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

* * * * * *

*

BWX Technologies......................... Lynchburg, VA........................... Wastewater treatment sludge

from electroplating

operations (EPA Hazardous

Waste No. F006) generated

at a maximum annual rate

of 300 cubic yards per

year, after (insert

publication date of the

final rule), and disposed

of in a Subtitle D

landfill.

BWX Technologies must meet

the following conditions

for the exclusion to be

valid:

(1) Delisting Levels: All

leachable concentrations

for the following

constituents measure using

the SW-846 method 1311

(the TCLP) must not exceed

the following levels (mg/

l).

(a) Inorganic constituents--

Antimony-0.6; Arsenic-5.0;

Barium-100; Beryllium-0.4;

Cadmium-0.5; Chromium-5.0;

Cobalt-210; Copper-130;

Lead-1.5; Mercury-0.2;

Nickel-70; Silver-5.0;

Thallium-0.2; Tin-2100;

Zinc-1000; Fluoride-400.

(b) Organic constituents--

Acetone-400; Methylene

Chloride-0.5.

(2) Verification testing

schedule: BWX Technologies

must analyze a

representative sample of

the filter cake from the

pickle acid treatment

system on an annual,

calendar year basis using

methods with appropriate

detection levels and

quality control

procedures. If the level

of any constituent

measured in the sample of

filter cake exceeds the

levels set forth in

Paragraph 1, then the

waste is hazardous and

must be managed in

accordance with Subtitle C

of RCRA. Data from the

annual verification

testing must be submitted

to EPA within 60 days of

the sampling event.

(3) Changes in Operating

Conditions: If BWX

Technologies significantly

changes the manufacturing

or treatment process

described in the petition,

or the chemicals used in

the manufacturing or

treatment process, BWX

Technologies may not

manage the filter cake

generated from the new

process under this

exclusion until it has met

the following conditions:

(a) BWX Technologies must

demonstrate that the waste

meets the delisting levels

set forth in Paragraph 1;

(b) it must demonstrate

that no new hazardous

constituents listed in

Appendix VIII of Part 261

have been introduced into

the manufacturing or

treatment process; and (c)

it must obtain prior

written approval from EPA

to manage the waste under

this exclusion.

(4) Data Submittals: The

data obtained under

Paragraphs 2 and 3 must be

submitted to The Waste and

Chemicals Management

Division, U.S. EPA Region

III, 1650 Arch Street,

Philadelphia, PA 19103.

Records of operating

conditions and analytical

data must be compiled,

summarized, and maintained

on site for a minimum of

five years and must be

furnished upon request by

EPA or the Commonwealth of

Virginia, and made

available for inspection.

Failure to submit the

required data within the

specified time period or

to maintain the required

records on site for the

specified time period will

be considered by EPA, at

its discretion, sufficient

basis to revoke the

exclusion to the extent

determined necessary by

EPA. All data must be

accompanied by a signed

copy of the certification

statement set forth in 40

CFR Sec. 260.22(i)(12) to

attest to the truth and

accuracy of the data

submitted.

(5) Reopener:

(a) If BWX Technologies

discovers that a condition

at the facility or an

assumption related to the

disposal of the excluded

waste that was modeled or

predicted in the petition

does not occur as modeled

or predicted, then BWX

Technologies must report

any information relevant

to that condition, in

writing, to the Regional

Administrator or his

delegate within 10 days of

discovering that

condition.

(b) Upon receiving

information described in

paragraph (a) of this

section, regardless of its

source, the Regional

Administrator or his

delegate will determine

whether the reported

condition requires further

action. Further action may

include repealing the

exclusion, modifying the

exclusion, or other

appropriate response

necessary to protect human

health and the

environment.

[[Page 42328]]

(6) Notification

Requirements: BWX

Technologies 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 be

deemed to be a violation

of this exclusion and may

result in a revocation of

the decision.

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[FR Doc. 99-20040 Filed 8-3-99; 8:45 am]

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