[Federal Register Volume 64, Number 149 (Wednesday, August 4, 1999)]
[Proposed Rules]
[Pages 42317-42328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20040]


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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.
----------------------------------------------------------------------------------------------------------------

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