[Federal Register Volume 85, Number 68 (Wednesday, April 8, 2020)]
[Rules and Regulations]
[Pages 19676-19681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05910]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R10-RCRA-2018-0662; FRL-10006-64-Region 10]
Hazardous Waste Management System; Final Exclusion for
Identifying and Listing Hazardous Waste
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) (also, ``the Agency
``or ``we'' in this preamble) is taking final action to grant three
petitions submitted jointly by Emerald Kalama Chemical, LLC (Emerald)
and Fire Mountain Farms, Inc (FMF) (Petitioners), in Lewis County,
Washington to exclude (or ``delist'') a one-time amount up to 20,100
cubic yards of U019 (benzene) and U220 (toluene) mixed material from
the list of federal hazardous wastes as proposed on November 12, 2019.
The EPA has decided to grant these petitions as proposed and under the
same conditions based on an evaluation of waste-specific information
provided by the Petitioners and a consideration of public comments
received.
DATES: This final rule is effective on April 8, 2020.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. [EPA-R10-RCRA-2018-0662]. All documents in the docket are
listed on the www.regulations.gov website. Although listed in the
index, some information is not publicly available, e.g., Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available electronically through www.regulations.gov or in hard copy at
the RCRA Records Center, 16th Floor, U.S. EPA, Region 10, 1200 6th
Avenue, Suite 155, OAW-150, Seattle, Washington 98101. This facility is
open from 8:30 a.m. to 4:00 p.m., Monday through Friday, excluding
legal holidays. The EPA recommends you telephone Dr. David Bartus at
(206) 553-2804 before visiting the Region 10 office. The public may
copy material from the regulatory docket at 15 cents per page.
FOR FURTHER INFORMATION CONTACT: Dr. David Bartus, EPA, Region 10, 1200
6th Avenue, Suite 155, OAW-150, Seattle, Washington 98070; telephone
number: (206) 553-2804; email address: [email protected].
As discussed below, Ecology is evaluating the petitions submitted
by Emerald and FMF under state authority. Information on Ecology's
action may be found at https://fortress.wa.gov/ecy/publications/SummaryPages/1804023.html.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Background
A. What is a delisting petition?
B. What regulations allow a waste to be delisted?
II. Emerald Kalama's and FMF's Petitions
A. What wastes did petitioners petition epa to delist?
B. What information was submitted in support of these petitions?
III. EPA's Evaluation and Public Comments
A. What decision is EPA finalizing and why?
B. Public Comments Received and EPA's Response
IV. Final Rule
A. What are the terms of this exclusion?
B. When is the delisting effective?
C. How does this action affect the states?
V. Statutory and Executive Order Reviews
I. Background
A. What is a delisting petition?
A delisting petition is a request from a generator to exclude waste
from the list of hazardous wastes under RCRA regulations. In a
delisting petition, the petitioner must show that waste generated at a
particular facility does not meet any of the criteria for which EPA
listed the waste as set forth in 40 CFR 261.11 and the background
document for the waste. In addition, a petitioner must demonstrate that
the waste does not exhibit any of the hazardous waste characteristics
(that is, ignitability, reactivity, corrosivity, and toxicity) and must
present sufficient information for us to decide whether factors other
than those for which the waste was listed warrant retaining it as a
hazardous waste. See 40 CFR 260.22, Section 3001(f) of RCRA, 42 U.S.C.
6921(f) and the background document for a listed waste.
A generator of a waste excluded from the hazardous waste lists of
40 CFR part 261 subpart D remains obligated under RCRA to confirm that
its waste remains nonhazardous based on the hazardous waste
characteristics in order to continue to manage the waste as non-
hazardous.
B. What regulations allow a waste to be delisted?
Under 40 CFR 260.20, 260.22, and 42 U.S.C. 6921(f), facilities may
petition the EPA to remove their wastes from otherwise applicable
hazardous waste storage, treatment and disposal requirements by
excluding them from the lists of hazardous wastes contained in 40 CFR
261.31 and 261.32. Specifically, 40 CFR 260.20 allows any person to
petition the Administrator to modify or revoke any provision of 40 CFR
parts 260 through 266, 268, and 273. 40 CFR 260.22 provides a generator
the opportunity to petition the Administrator to exclude a waste from
the lists of hazardous wastes on a ``generator specific'' basis.
II. Emerald Kalama's and FMF's Petitions
A. What wastes did petitioners petition EPA to delist?
Emerald manufactures various organic chemicals used as artificial
flavors and fragrances, food preservatives, plasticizers, and
intermediates at their facility in Kalama, Washington. Most of the
chemicals produced are derived from toluene or from the oxidation
products of toluene, including benzoic acid and benzaldehyde.
Additional products are produced as derivatives of benzoic acid and
benzaldehyde. Products are typically purified by continuous or batch
distillation. In conjunction with its manufacturing processes, Emerald
operates an industrial wastewater treatment system, consisting of an
anaerobic digestion process and an aerobic oxidation system, both of
which are biological treatment systems very similar to municipal
wastewater treatment systems. This treatment system produces industrial
wastewater treatment plant biological solids (IWBS). As documented in
the Petitioners' delisting petitions, the IWBS designates as U019
(benzene) and U220 (toluene).
FMF operates receiving, storage, treatment, and land application
facilities in Lewis County, Washington for wastewater treatment plant
treatment solids received from municipal, industrial, and private
wastewater treatment plants. FMF is not permitted or otherwise
authorized to manage, treat, or dispose of hazardous or dangerous
wastes. Emerald contracted with FMF to land apply Emerald's IWBS
beginning in October 1995. FMF mixed Emerald's IWBS with treatment
solids from other facilities
[[Page 19677]]
and land applied or stored the mixed IWBS/treatment solids wastes at
several FMF facilities. The RCRA rules require that listed hazardous
wastes, when mixed with other materials, continue to be regulated as
listed hazardous wastes (40 CFR 261.3). The mixed IWBS/treatment solids
wastes are currently stored at three FMF facilities: Burnt Ridge
located at 856 Burnt Ridge Road, Onalaska, Washington; Newaukum Prairie
located at 349 State Route 508, Chehalis, Washington; and Big Hanaford
located at 307 Big Hanaford Road, Centralia, Washington. Under a
separate action,\1\ Ecology is requiring that Emerald and FMF remove
these wastes from the three units according to closure plans approved
pursuant to WAC 173-303-610.
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\1\ The Washington State Department of Ecology has entered into
a litigation settlement (Docket Entry 3) with Fire Mountain Farms
and Emerald-Kalama that, in part, requires closure of the units
managing dangerous waste considered in this final exclusion. In this
context, this final exclusion is a ``one-time'' delisting that will
allow the fixed volume of wastes to be generated pursuant to closure
of these three units as non-hazardous.
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The Petitioners have requested that up to 4,700 cubic yards at the
Burnt Ridge facility, 10,400 cubic yards at the Newaukum Prairie
facility, and 5,000 cubic yards at the Big Hanaford facility of IWBS/
treatment solids be excluded from the list of hazardous wastes.
B. What information was submitted in support of these petitions?
FMF conducted an investigation of the wastes at each of the three
storage units in September 2014.\2\ Three composite samples of the
mixed IWBS/treatment solids wastes were collected from each storage
unit. At Burnt Ridge and Newaukum Prairie, each composite sample
consisted of nine grab samples collected from various depths. Each
composite sample collected at Big Hanaford consisted of six grab
samples collected from various depths.
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\2\ This investigation is documented in the first report in
Appendix C of the three delisting petitions (Docket Entries 7-9).
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Each composite sample was analyzed for the following constituents
or constituent groups: Volatile organic compounds (VOCs), semivolatile
organic compounds (SVOCs), total metals, total cyanide, and total
solids. The specific analytes included in the analysis are defined by
the analytical method used for each group.
In addition, two composite samples from the Newaukum Prairie
storage unit and one composite sample each from the Burnt Ridge and Big
Hanaford storage units were analyzed for the following parameters or
constituent groups: Pesticides; polychlorinated biphenyl (PCB)
Aroclors; dioxins and furans, reported as 2,3,7,8-
tetrachlorodibenzodioxin toxicity equivalence quotient; ammonia; Total
Kjeldahl Nitrogen (TKN); pH, nitrite; and nitrate + nitrite (the
concentration of nitrate was calculated by the analytical laboratory).
Fourteen grab samples from the Newaukum Prairie storage unit and seven
grab samples each from the Burnt Ridge and Big Hanaford storage units
were analyzed for total fecal coliform.
Emerald conducted additional sampling of the mixed IWBS/treatment
solids wastes at each of the three storage units in August and October
2017.\3\ Emerald performed the additional sampling based on the
preliminary delisting levels and the September 2014 investigation.
Samples from the storage units at Burnt Ridge, Newaukum Prairie, and
Big Hanaford were analyzed for selected volatile organic compounds
(acetone, benzene, methanol, and toluene), total solids, and pH.
Samples from Big Hanaford were analyzed for total acrylonitrile;
cobalt; 4-methylphenol; 2,4-dinitrotoluene; 2,6-dinitrotoluene; and
naphthalene.
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\3\ Results of these sampling activities are documented in the
third report in Appendix C of the three delisting petitions (Docket
Entries 7-9).
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III. EPA's Evaluation and Public Comments
A. What decision is EPA finalizing and why?
The EPA is finalizing an exclusion for a one-time amount up to
20,100 cubic yards of U019 (benzene) and U220 (toluene) mixed material
from the list of federal hazardous wastes currently located at three
FMF facilities, as proposed in our notice of proposed rulemaking 84 FR
60975 (November 12, 2019). The wastes covered by this delisting are
limited to 4,700 cubic yards of mixed materials at the Burnt Ridge
facility, 10,400 cubic yards at the Newaukum Prairie facility, and
5,000 cubic yards at the Big Hanaford facility, present at each
facility as of the effective date of this exclusion and that are
associated with closure of hazardous waste management units at three
facilities owned and operated by FMF in accordance with closure plans
approved by Ecology. The Petitioners petitioned EPA to exclude, or
delist, these wastes because they believed that the petitioned wastes
do not meet the criteria for which they were listed and that there are
no additional constituents or factors which could cause the wastes to
be hazardous waste. Review of this petition included consideration of
the original listing criteria, as well as the additional factors
required by the Hazardous and Solid Waste Amendments of 1984 (HSWA).
See 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(2) through (4).
The EPA proposed on November 12, 2019 (84 FR 60975) to exclude or
delist the petitioned wastes at the three FMF facilities from the list
of hazardous wastes in 40 CFR 261.31 and accepted public comment on the
proposed rulemaking. The EPA considered all comments received, and for
reasons discussed in both the proposal and this final action, has
determined that the petitioned wastes should be excluded from
regulation as hazardous waste under the specified conditions, as
originally proposed.
B. Public Comments Received and EPA's Response
The EPA received comments from seven individuals on the proposed
rulemaking. Some commenters expressed support for the proposed
exclusion while still raising some adverse comments. A brief summary of
the adverse comments and EPA's responses to them are as follows.
Commenter 1 (Docket entry Comment 0025). This commenter disagreed
with the proposed rule on the basis that ``there is already enough
hazardous waste being expelled into our environment, and that this one-
time amount of hazardous waste still pollutes our environment.'' The
commenter also asserted that the proposed action ``goes against the
hazardous waste regulations under [RCRA].'' EPA disagrees that the
proposed delisting action will result in hazardous waste being expelled
into the environment. The scope of this rulemaking is limited to a
determination of whether the covered wastes may be appropriately
managed as solid wastes and not hazardous wastes. In fact, this
delisting, in conjunction with closure of the units under Ecology's
dangerous waste program is expected to address commenter's concerns
regarding releases from these units by ensuring that the wastes are
placed in a secure, monitored landfill. Further, the proposed action is
not in conflict with RCRA, but is an exercise of authority specifically
provided for the delisting of hazardous wastes found in the
implementing regulations at 40 CFR 260.20 and 22.
Commenter 2 (Docket entry Comment 0026). This commenter questioned
``[w]hat is to be gained for the environment by allowing these [two]
companies to dump these chemicals in an improved landfill instead of
cleaning up the land''. The commenter appears to misunderstand how the
action that EPA
[[Page 19678]]
is finalizing relates to the obligation of the Petitioners to clean up
the three sites where the waste is currently stored. As noted in
Footnote 4 in the notice of proposed rulemaking, Ecology has determined
that the units managing the candidate wastes at the three FMF
facilities are illegally storing listed hazardous waste, and that in
order to return to compliance with the state dangerous waste regulation
and to protect the environment, each of the facilities must be closed
under an approved dangerous waste closure plan. Based on the analysis
presented in the proposed rule, EPA has determined that it is
protective of human health and the environment to allow wastes from
closure of these units to be disposed of in a monitored solid waste
landfill. EPA acknowledges the commenter's concern regarding cleaning
up the land affected by past management of these wastes, but notes that
clean up obligations at these sites is beyond the scope of this
rulemaking.
This commenter also provided adverse comments on EPA's proposed
``Strengthening Transparency in Regulatory Science'' regulation. This
matter is outside of the scope of this final rulemaking.
Commenter 3 (Docket entry Comment 0027). This commenter questioned
the ethics and legitimacy of the exemption of the Petitioners' wastes
from regulation as hazardous wastes and stressed the importance of laws
being applied evenly to all parties. The commenter seems to assert that
allowing for a delisting process offers some parties an unfair
advantage and questioned whether ulterior motives were at play that
``pose a greater risk to public safety than initially understood.'' EPA
disagrees with the commenter's contention that this action is
inconsistent with regulatory requirements. As explained in detail in
the notice of proposed rulemaking, EPA is exercising regulatory
authority that is potentially available to any petitioner whose wastes
meet the criteria for delisting provided under the law. Additionally,
as explained elsewhere in this final action, EPA believes that this
delisting action, will provide a timely and protective pathway to
closure of the three FMF facilities under the state dangerous waste
program. Finally, the commenter noted that wastes in the three FMF
facilities may pose ``a greater risk to public safety than initially
understood.'' As discussed in detail in the notice of proposed
rulemaking, EPA has carefully considered the risks of the waste using
established risk evaluation methodology. Based on this analysis EPA has
determined that excluding these wastes from the hazardous waste
management system, subject to the conditions of this final rule, is
fully protective of human health and the environment.
Commenter 4 (Docket entry Comment 0028). This commenter identified
hazards associated with toluene, as described in a safety data sheet
for the chemical and questioned what benefit delisting over 20,000
cubic yards of a mixture containing this chemical would have for the
general public. As discussed in the notice of proposed rulemaking,
characterization sampling and analysis as well as the risk analysis of
the wastes using the Delisting Risk Assessment Software (DRAS)
explicitly considered toluene and concluded that it was not present at
levels that warranted retention of the mixed material as a listed
waste. Whether or not a delisting benefits the public at large is not a
criterion for consideration under the procedures set out at 40 CFR
260.20 for delisting a listed hazardous waste. However, as explained in
the proposed rulemaking, this action will provide a timely and
protective pathway to closure of the three FMF facilities under the
state dangerous waste program. Timely and protective closure of these
facilities and responsible management of the wastes at issue in an
appropriately regulated landfill is in the public interest.
Commenter 5 (Docket entry Comment 0029). The commenter was
supportive of the proposed delisting but expressed a preference that
the Petitioners analyze five (as opposed to three) samples of the mixed
IWBS/treatment solids wastes before the start of closure activities.
EPA continues to believe that three samples of the materials in
question will provide a reasonable demonstration of compliance with the
delisting conditions. EPA proposed the sampling requirement as a
condition of the exclusion in order to ensure analytical data are
available for all delisting verification constituents, including a
small number of constituents considered in the delisting analysis but
not included in the original waste characterization database. Should
results of the analysis of these additional samples demonstrate other
than full compliance with the delisting conditions, the terms of the
exclusion enable EPA to require the Petitioners to take appropriate
action or to suspend the effectiveness of the delisting.
Commenter 6 (Docket entry Comment 0030a). This commenter expressed
concern regarding testing of groundwater or drinking water wells in the
area north of the Newaukum Prarie site and raised several concerns
about monitoring results and the extent of contamination at the three
sites and made recommendations for future monitoring. These comments
are beyond the scope of this rulemaking and are best addressed by
Ecology. This commenter also stated that cobalt was considered only in
the analysis of wastes at the Big Hanaford site--in fact, EPA
considered cobalt at all three sites, as documented in Tables 3, 4 and
5 in the notice of proposed rulemaking. This commenter also requested
that only state or EPA supervised site workers should be used to gather
material for compliance. EPA disagrees that such direct supervision of
sample collection is necessary to assure compliance with the
requirements of the delisting. EPA generally requires hazardous waste
facilities to conduct their own delisting verification sampling and
analysis, with agency oversight and review. EPA will carefully review
the results of sampling and analysis required under the delisting rule
to ensure the resulting data are appropriate for use in demonstrating
compliance with requirements of the delisting exclusion.
Commenter 7 (Docket entries Comment 0031 and 0032). This commenter
submitted two sets of comments that are substantially similar. The
commenter described what he believes to be environmental damage to
plants in areas surrounding the Newaukum Prairie site, and groundwater
contamination near the Newaukum and Burnt Ridge sites that the
commenter attributes to Petitioner FMF's activities. The commenter
urges additional and more current testing of groundwater to be
performed in the area. The commenter also describes health impacts and
nuisance issues that he believes are attributable to Petitioner FMF's
activities at the Newaukum site. This commenter raised concerns about
the operations and aeration of lagoons at Newaukum site. Finally, the
commenter urges that the material at Newaukum should be disposed of at
a landfill that is qualified and licensed to handle this material, and
states that Petitioner FMF would prefer to land apply the materials in
Lewis county, Washington. In taking this final action, Petitioners will
be required to dispose of materials from the sites identified by this
commenter in a RCRA Subtitle D landfill. Under the terms of this final
exclusion, land application of the materials subject to this delisting
is prohibited. However, other matters concerning ongoing operations at
the Petitioner FMF's sites and groundwater or other sampling activities
beyond sampling of the
[[Page 19679]]
delisted materials are outside of the scope of this rulemaking.
IV. Final Rule
A. What are the terms of this exclusion?
EPA is finalizing this exclusion as proposed, including all of the
associated conditions. As a key condition of this exclusion, the
Petitioners must dispose of this waste in a subtitle D landfill
licensed, permitted or otherwise authorized by a state, and will remain
obligated to verify that the waste meets the allowable concentrations
set forth here. This exclusion applies only to a maximum volume of
waste and is effective only if all conditions contained in this rule
are satisfied. Wastes in excess of these quantities or that otherwise
do not meet the conditions of this exclusion must be managed as
hazardous waste.
B. When is the delisting effective?
This rule is effective April 8, 2020. The Hazardous and Solid Waste
Amendments of 1984 amended section 3010 of RCRA, 42 U.S.C. 6930(b)(1),
to allow rules to become effective in less than six months when the
regulated community does not need the six-month period to come into
compliance. This rule reduces rather than increases the existing
requirements and, therefore, is effective immediately upon publication
under the Administrative Procedures Act, pursuant to 5 U.S.C. 553(d).
C. How does this action affect the states?
This exclusion is being issued under the federal RCRA delisting
program. Therefore, only states subject to federal RCRA delisting
provisions would be affected. This exclusion is not effective in states
that have received authorization to make their own delisting decisions.
Also, the exclusion may not be effective in states having a dual system
that includes federal RCRA requirements and their own requirements. The
EPA allows states to impose their own regulatory requirements that are
more stringent than EPA's, under Section 3009 of RCRA. These more
stringent requirements may include a provision that prohibits a
federally issued exclusion from taking effect in the state. As noted in
the notice of proposed rulemaking, Ecology is expected to make a
parallel delisting decision under their separate state authority. The
EPA also notes that if the Petitioners transport the petitioned waste
to or manage the waste in any state with delisting authorization or
their own state-only delisting requirements, they must obtain a
delisting from that state before they can manage the waste as
nonhazardous in that state. The EPA urges the Petitioners to contact
the state regulatory authority in each state to or through which they
may wish to ship their waste to determine the status of their waste
under that state's laws.
V. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is exempt from review by the Office of Management and
Budget because it is a rule of particular applicability, not general
applicability. The action approves a delisting petition under RCRA for
the petitioned waste at a particular facility.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is considered an Executive Order 13771 deregulatory
action. This final rule provides meaningful burden reduction by
allowing the Petitioners to manage a one-time amount of up to 20,100
cubic yards of material under RCRA Subtitle D management standards
rather than the more stringent RCRA Subtitle C standards. This action
will significantly reduce the costs associated with the on-site
management, transportation and disposal of this waste stream by
shifting its management from RCRA Subtitle C hazardous waste management
to RCRA Subtitle D nonhazardous waste management.
C. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.) because it only applies to a particular facility.
D. Regulatory Flexibility Act
Because this rule is of particular applicability relating to a
particular facility, it is not subject to the regulatory flexibility
provision of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
F. Unfunded Mandates Reform Act
This action does not contain any unfunded mandate as described in
the Unfunded Mandates Reform Act (2 U.S.C. 1531-1538) and does not
significantly or uniquely affect small governments. The action imposes
no new enforceable duty on any state, local, or tribal governments or
the private sector.
G. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
H. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. This action applies only to a particular
facility on non-tribal land. Thus, Executive Order 13175 does not apply
to this action.
I. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866, and
because the EPA does not believe the environmental health or safety
risks addressed by this action present a disproportionate risk to
children. The health and safety risks of the petitioned waste were
evaluated using the EPA's Delisting Risk Assessment Software (DRAS),
which considers health and safety risks to children. Use of the DRAS
was described in section III.E of the proposed delisting. The technical
support document and the user's guide for DRAS are available at https://www.epa.gov/hw/hazardous-waste-delisting-risk-assessment-software-dras.
J. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
K. National Technology Transfer and Advancement Act
This action does not involve technical standards as described by
the National Technology Transfer and Advancement Act of 1995 (15 U.S.C.
272 note).
[[Page 19680]]
L. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations, low-income populations, and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The
EPA has determined that this action will not have disproportionately
high and adverse human health or environmental effects on minority or
low-income populations because it does not affect the level of
protection provided to human health or the environment. The EPA's risk
assessment, as described in section III.E in the proposed delisting,
did not identify unacceptable risks from management of this material in
an authorized or permitted RCRA Subtitle D solid waste landfill (e.g.,
municipal solid waste landfill or commercial/industrial solid waste
landfill). Therefore, the EPA believes that any populations in
proximity of the landfills used by this facility should not be
adversely affected by common waste management practices for this
delisted waste.
M. Congressional Review Act
This action is exempt from the Congressional Review Act (5 U.S.C.
801 et seq.) because it is a rule of particular applicability.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, and Reporting
and recordkeeping requirements.
Dated: February 28, 2020.
Timothy Hamlin,
Director, Land, Chemicals and Redevelopment Division.
For the reasons set out in the preamble, 40 CFR part 261 is amended
as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
0
1. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
0
2. In Table 1 of Appendix IX to Part 261 add an entry for ``Emerald
Kalama Chemical, LLC and Fire Mountain Farms, Inc.'' in alphabetical
order to read as follows:
Appendix IX to Part 261--Wastes Excluded Under Sec. Sec. 260.20 and
260.22
Table 1--Wastes Excluded From Non-Specific Sources
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Facility Address Waste description
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* * * * * * *
Emerald Kalama Chemical, LLC Lewis County, Washington....... Mixtures of hazardous wastewater treatment
and Fire Mountain Farms, Inc. sludges, U019 (benzene) and U220 (toluene)
and other non-hazardous solid wastes to be
removed by Emerald Kalama Chemical, LLC and
Fire Mountain Farms, Inc (Petitioners)
pursuant to closure plans approved by the
Washington State Department of Ecology and
currently in storage in Fire Mountain Farm's
Burnt Ridge, Newaukum Prarie and Big Hanaford
facilities in Lewis County, Washington. The
maximum amount of wastes that may be managed
pursuant to this exclusion is 4,700 cubic
yards at the Burnt Ridge facility, 10,400
cubic yards at the Newaukum Prairie facility,
and 5,000 cubic yards at the Big Hanaford
facility, present at each facility as of the
effective date of this exclusion, subject to
the conditions below. Wastes managed under
this exclusion must be disposed of in a
Subtitle D landfill which is licensed,
permitted, or otherwise authorized by a state
to accept the delisted mixed material. The
exclusion becomes effective as of April 8,
2020.
1. Delisting Levels: The constituent
concentrations in a representative sample of
the waste must not exceed the following
levels. For each constituent, the delisting
verification level is provided for Burnt
Ridge, Newaukum Prarie and Big Hanaford,
respectively. Total concentrations (mg/kg):
Cobalt--94,400, 49,100, 89,900; TCLP
Concentrations (mg/l in the waste extract):
Barium--1,090, 498, 1,030; Cobalt--6.28,
2.92, 5.92; Copper--716, 332, 674; Nickel--
408, 184, 384; Zinc--6,170, 2,820, 5,800;
Benzaldehyde--1,760, 809, 1,660; Benzene--
2.35, 1.08, 2.21; Benzoic Acid--70,400,
32,400, 66,300; Formic Acid--1,130, 519,
1,060; Benzyl Alcohol--8,800, 4,040, 8,290;
Methanol--8,800, 4,040, 8,290; Phenol--5,280,
2,430, 4,970; Toluene--460, 211, 433.
2. Verification Testing: To verify that the
waste does not exceed the delisting
concentrations specified in Condition 1, the
Petitioners must collect and analyze an
extract using EPA SW-846 Method 1311 (TCLP
extraction) from three representative
composite samples for barium, benzaldehyde,
benzoic acid, formic acid, and benzyl alcohol
of the mixed IWBS/treatment solids wastes
from each FMF facility prior to the start of
closure activities to demonstrate that the
constituents of concern in the petitioned
waste do not exceed the concentrations of
concern in Condition 1. If results from
analysis of any composite sample do not
reflect compliance with delisting exclusion
limits, the EPA may require the Petitioners
to conduct additional verification sampling
to better define the volume of waste with
waste constituent concentrations exceeding
the delisting exclusion limits. The
Petitioners must conduct all verification
sampling according to a written sampling plan
and associated quality assurance project plan
which is approved in advance by the EPA that
ensures analytical data are suitable for
their intended use. Sampling data must be
submitted to the EPA no later than 10 days
after receiving the final results from the
laboratory, or such later date as the EPA may
agree to in writing. Any waste volume for
which representative composite sampling does
not reflect full compliance with the
exclusion criteria in Condition 1 must
continue to be managed as hazardous. The
Petitioners must also submit to EPA a
certification that all wastes satisfying the
delisting concentrations in Condition 1 have
been disposed of in a Subtitle D landfill
which is licensed, permitted, or otherwise
authorized by a state to accept the delisted
mixed material of wastewater treatment
sludge, and the quantity of waste disposed
from each facility. This submission must be
submitted to EPA within 60 days of completion
of closure according to the approved closure
plan.
3. Data Submittals: The Petitioners must
submit the data obtained through verification
testing and as required by other conditions
of this rule, to the Director, Land,
Chemical, & Redevelopment Division, U.S. EPA
Region 10, 1200 6th Avenue Suite 155, M/S 15-
H04, Seattle, Washington, 98070 or his or her
equivalent. Electronic submission via
electronic mail, physical electronic media
(e.g., USB flash drive), or an electronic
file transfer system is acceptable. The
Petitioners must compile, summarize, and
maintain for a minimum of five years, records
of analytical data and waste disposal
required by this rule. The Petitioners must
make these records available for inspection.
All data must be accompanied by a signed copy
of the certification statement in 40 CFR
260.22(i)(12). If the Petitioners fail to
submit the required data within the specified
time or maintain the required records for the
specified time, the EPA may, at its
discretion, consider such failure a
sufficient basis to reopen the exclusion as
described in Condition 4.
[[Page 19681]]
4. Reopener Language: (A) If, any time after
disposal of the delisted waste, the
Petitioners possess or are otherwise made
aware of any data, including but not limited
to leachate data or groundwater monitoring
data from the final land disposal facility,
relevant to the delisted waste indicating
that any constituent is at a higher than the
specified delisting concentration, then the
Petitioners must report such data, in
writing, to the Director, Land, Chemical, &
Redevelopment Division, EPA Region 10 at the
address above, or his or her equivalent,
within 10 days of first possessing or being
made aware of those data.
(B) Based on the information described in
Condition 4(A) and any other information
received from any source, the EPA will make a
preliminary determination as to whether the
reported information requires Agency action
to protect human health or the environment.
Further action may include suspending, or
revoking the exclusion, or other appropriate
response necessary to protect human health
and the environment.
(C) If the EPA determines that the reported
information does require Agency action, the
EPA will notify the Petitioners in writing of
the actions it believes are necessary to
protect human health and the environment. The
notice shall include a statement of the
proposed action and a statement providing the
Petitioners with an opportunity to present
information as to why the proposed Agency
action is not necessary or to suggest an
alternative action. The Petitioners shall
have 30 days from the date of the EPA's
notice to present the information.
(D) If after 30 days the Petitioners present
no further information or after a review of
any submitted information, the EPA will issue
a final written determination describing the
Agency actions that are necessary to protect
human health or the environment. Any required
action described in the EPA's determination
shall become effective immediately unless the
EPA provides otherwise.
* * * * * * *
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[FR Doc. 2020-05910 Filed 4-7-20; 8:45 am]
BILLING CODE 6560-50-P