219 Hazardous waste management system; proposed exclusion for identification and listing of hazardous waste

Title 25--ENVIRONMENTAL PROTECTION

ENVIRONMENTAL QUALITY BOARD

[25 PA. CODE CH. 261a]

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

[36 Pa.B. 705]

   The Environmental Quality Board (Board) amends Chapter 261a (relating to identification and listing of hazardous waste) to read as set forth in Annex A. In response to a petition to delist from MAX Environmental Technologies, Inc. (MAX), the final-form rulemaking delists treated Electric Arc Furnace Dust (EAFD), treated at the hazardous waste treatment facility operated by MAX located in Yukon, PA, from the lists of hazardous wastes.

   This order was adopted by the Board at its meeting of October 18, 2005.

A.  Effective Date

   This final-form rulemaking will go into effect upon publication in the Pennsylvania Bulletin.

B.  Contact Persons

   For further information, contact D. Richard Shipman, Chief, Division of Hazardous Waste Management, P. O. Box 8471, Rachel Carson State Office Building, Harrisburg, PA 17105-8472, [phone]; or Kurt Klapkowski, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, [phone]. Persons with a disability may use the AT&T Relay Service, [phone] (TDD users) or [phone] (voice users). This final-form rulemaking is available on the Department of Environmental Protection's (Department) website at www.dep.state.pa.us.

C.  Statutory Authority

   The final-form rulemaking is being made under the authority of the Solid Waste Management Act (SWMA) (35 P. S. §§ 6018.101--6018.1003). Section 105(a) of the SWMA (35 P. S. § 6018.105(a)) grants the Board the power and the duty to adopt the rules and regulations of the Department to carry out the provisions of the SWMA.

D.  Background of the Amendments

   A delisting petition is a request to exclude waste from the list of hazardous wastes under the Resource Conservation and Recovery Act of 1976 (RCRA) (42 U.S.C.A. §§ 6901--6986) and the SWMA. Under 40 CFR 260.20 and 260.22 (relating to general; and petitions to amend part 261 to exclude a waste produced at a particular facility), which are incorporated by reference in §§ 260a.1 and 260a.20 (relating to incorporation by reference, purpose, scope and applicability rulemaking petitions), a person may petition the United States Environmental Protection Agency (EPA) or a state administering an EPA-approved hazardous waste management program to remove waste or the residuals resulting from effective treatment of a waste from a particular generating facility from hazardous waste control by excluding the waste from the lists of hazardous wastes in 40 CFR 261.31 and 261.32 (relating to hazardous wastes from non-specific sources; and hazardous wastes from specific sources). Specifically, 40 CFR 260.20 allows any person to petition to modify or revoke any provision of 40 CFR Parts 260--266, 268 and 273. A person is provided the opportunity to petition to exclude a waste on a ''generator specific'' basis from the hazardous waste lists under 40 CFR 260.22. Under the Commonwealth's hazardous waste regulations in § 260a.20, petitions are to be submitted to the Board in accordance with the procedures established in Chapter 23 (relating to Environmental Quality Board policy for processing petitions--statement of policy) instead of the procedures in 40 CFR 260.20(b)--(e).

   Effective November 27, 2000, the Department received approval from the EPA under RCRA to administer the Commonwealth's hazardous waste management program instead of the RCRA regulations. As part of that program approval and delegation, the Department and the Board are authorized to review and approve petitions for delisting of waste.

   In a delisting petition, the petitioner shall show that waste generated at a particular facility does not meet any of the criteria for which the EPA listed the waste as set forth in 40 CFR 261.11 (relating to criteria for listing hazardous waste) and the background document for the waste. In addition, a petitioner shall demonstrate that the waste does not exhibit any of the hazardous waste characteristics (that is, ignitability, reactivity, corrosivity and toxicity) and present sufficient information for the agency to decide whether factors other than those for which the waste was originally listed warrant retaining it as a hazardous waste.

   On November 3, 2003, MAX submitted a delisting petition under § 260a.20 and 40 CFR 260.20 and 260.22, which are incorporated by reference in the hazardous waste regulations. The petition seeks to exclude from the lists of hazardous wastes in 40 CFR 261.32, the residues resulting from the effective treatment of EAFD conducted at the MAX Yukon facility. EAFD is listed as a hazardous waste in 40 CFR Part 261 (relating to identification and listing of hazardous waste) and bears waste code K061. EAFD/K061 is defined in 40 CFR 261.32 in the iron and steel industry group as ''emission control dust/sludge from the primary production of steel in electric arc furnaces.''

   The petition submitted by MAX provides: (1) descriptions and schematic diagrams of the proposed EAFD treatment system; (2) detailed chemical and physical analyses of the residuals resulting from treatment of samples of EAFD at the MAX Yukon facility; and (3) the results of modeling, using the EPA's Delisting Risk Assessment Software (DRAS) modeling software, to evaluate the risk posed to human health and the environment if the proposed delisted material was to be placed in a Subtitle D residual waste landfill, even assuming that the liner system of the landfill were to fail in containing that material.

   The Department has carefully and independently reviewed the information in the petition submitted by MAX. Review of this petition included consideration of the original listing criteria, as well as the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA), as reflected in section 222 of the HSWA (42 U.S.C. § 6921(f)) and 40 CFR 260.22(d)(2)--(4).

   The Department believes that this information demonstrates that the residues resulting from treatment of EAFD meeting the acceptance criteria identified in the petition which are treated at the MAX Yukon facility in accordance with the treatment protocols described in the petition and satisfy the delisting criteria in 40 CFR 260.22. The data reviewed by the Department shows that residues resulting from treatment of EAFD at the MAX Yukon facility no longer meet the criteria for which it was originally listed as hazardous waste K061. The data further demonstrate that the treated EAFD residuals do not possess hazard characteristics of ignitability, corrosivity, reactivity or toxicity as defined by RCRA. Finally, the data submitted in the petition, coupled with modeling using the EPA's DRAS model, show that treated EAFD residuals do not pose a threat to human health or the environment when disposed of in a RCRA Subtitle D/Pennsylvania Class I residual waste landfill.

   Accordingly, the final-form rulemaking provides for a conditional delisting of EAFD that has been treated at the MAX Yukon facility. Under the conditions of the delisting, MAX must dispose of the treated EAFD residuals in a RCRA Subtitle D/Pennsylvania Class I residual waste landfill, which has groundwater monitoring and which is permitted to manage residual waste. The exclusion is valid for a maximum annual rate of 300,000 cubic yards per year. Any amount exceeding this volume would not be delisted under this exclusion. The conditional exclusion will require that MAX maintain operational controls and protocols to assure that the treated waste continuously meets the applicable treatment standards.

   In January and May 2004, the Department briefed the Solid Waste Advisory Committee (SWAC) on the hazardous waste delisting petition submitted by MAX. On September 16, 2004, the Department presented draft proposed regulations to the SWAC for input. The SWAC recommended that the draft regulations be forwarded to the Board for consideration as a proposed rulemaking. The proposed rulemaking was published at 34 Pa.B. 6421 (December 4, 2004) with a 30-day public comment period. The SWAC was briefed on the comments received during the public comment period, and the regulatory change made as a result of the comments, at its July 14, 2005, meeting. Questions posed by members of the SWAC related to how the petitioner's data was analyzed, whether the exclusion was site and company specific and what precautions are in place to ensure waste treated from a specific generator under the delisting will not vary significantly over time. Department representatives and the petitioner satisfactorily addressed these questions, and the Committee endorsed the final rulemaking for consideration by the Board.

E.  Summary of Changes to the Proposed Rulemaking

   One change has been made to the text of the proposed rulemaking. This change results in a greater assurance that potential environmental or human health problems will not occur due to disposal of MAX's delisted treatment residues. The change lowers the levels of chemical constituents in the leachate from a facility where the delisted material has been disposed that will trigger investigative action. The more stringent trigger level is not more burdensome for MAX. It does not require any additional testing of leachate or groundwater. It only requires that MAX notify the Department in the event that routine testing of the leachate or groundwater produces results that exceed the delisting limits. The Department then has the responsibility of determining if any increased level of action or concern is necessary. The lower trigger levels are consistent with Federal delisting reopener levels.

F.  Summary of Comments and Responses on the Proposed Rulemaking

   During a 30-day public comment period, the Department received comments from five commentators. Based on the comments received, one change has been made to the text of the proposed rulemaking described in Section E.

   Other issues raised by the commentators included a concern that this final-form rulemaking will result in recoverable metals being disposed rather than recovered at a metals recovery facility and challenges relative to the merits of the technical information provided by MAX in support of its delisting request, as well as the Department's review. Since continually fluctuating market conditions determine what levels of metals in waste are economically recoverable, the Department does not believe it is appropriate to include provisions in a regulation that define what wastes should be disposed and what should be recycled. It is best that this matter be handled under the Department's waste management hierarchy and acceptance procedures included in MAX's hazardous waste management permit. As far as the challenges to the technical merit of MAX's request and the Department's review procedure, the Department followed National delisting procedure protocols established by the EPA and has consulted with EPA Region III staff in the development, acceptance and review of this delisting request.

G.  Benefits, Costs and Compliance

Benefits

   The final-form rulemaking will provide for treatment and disposition of EAFD, providing services to the steel-making operations that produce EAFD. The steel industry in this Commonwealth and across the country is changing to remain competitive, and one of the major changes has been the increased use of the electric arc furnaces and associated air pollution control equipment to capture EAFD generated in the steel-making process. One important feature of the electric arc furnaces is the recycling of a significant percentage of scrap steel. This method produces steel at reduced costs and provides greater environmental protection than other steel-making processes. In the last decade, the use of electric arc furnaces has increased in the United States to become the major method of steel production. As a result, EAFD is now the largest single hazardous waste produced in the United States. This is not a sign of environmental detriment, but rather the result of efforts across the industry to capture and sequester the metallic compound by-products resulting from steel making through more efficient pollution control devices. New electric arc furnaces are expected to be built in this Commonwealth. The proposed delisting of the residuals resulting from effective treatment of EAFD will assist steel-making operations by providing a cost-effective alternative for management of their wastes--by converting it from a hazardous waste to a nonhazardous residual waste that can be managed in an environmentally responsible manner in permitted residual waste facilities.

Compliance Costs

   MAX will be required to comply with the conditions set forth in the delisting regulation, including testing and recordkeeping requirements. However, the delisting of the residuals resulting from treatment of EAFD should result in an overall reduced waste management cost to the steel-making industry that would utilize the treatment services being offered by MAX.

Compliance Assistance Plan

   The final-form rulemaking should not require any educational, technical or compliance assistance efforts. The Department has and will continue to provide manuals, instructions, forms and website information consistent with the final-form rulemaking. In the event that assistance is required, the Department's Central Office will provide it.

Paperwork Requirements

   The final-form rulemaking creates some new paperwork requirements to be satisfied by MAX to demonstrate ongoing compliance with the conditions of the delisting regulation. The paperwork requirements are consistent with the protocols suggested by MAX as part of its delisting petition.

H.  Pollution Prevention

   The Pollution Prevention Act of 1990 (42 U.S.C.A. §§ 13101--13109) established a National policy that promotes pollution prevention as the preferred means for achieving state environmental protection goals. The Department encourages pollution prevention, which is the reduction or elimination of pollution at its source, through the substitution of environmentally-friendly materials, more efficient use of raw materials or the incorporation of energy efficiency strategies. Pollution prevention practices can provide greater environmental protection with greater efficiency because they can result in significant cost savings to facilities that permanently achieve or move beyond compliance. For this final-form rulemaking, the Department would require no additional pollution prevention efforts. The Department already provides pollution prevention educational material as part of its hazardous waste program.

I.  Sunset Review

   This final-form rulemaking will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulation effectively fulfills the goals for which it was intended.

J.  Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on November 22, 2004, the Department submitted a copy of the notice of proposed rulemaking, published at 34 Pa.B. 6421, to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House and Senate Environmental Resources and Energy Committees for review and comment.

   Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.

   Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on January 4, 2006, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on January 5, 2006, and approved the final-form rulemaking.

K.  Findings

   The Board finds that:

   (1)  Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.

   (2)  A public comment period was provided as required by law, and all comments were considered.

   (3)  This final-form rulemaking does not enlarge the purpose of the proposed rulemaking published at 34 Pa.B. 6421.

   (4)  This final-form rulemaking is necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this order.

L.  Order

   The Board, acting under the authorizing statutes, orders that:

   (a)  The regulations of the Department, 25 Pa. Code Chapter 261a, are amended by adding § 261a.32 and Appendix IXa to read as set forth in Annex A.

   (b)  The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.

   (c)  The Chairperson shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.

   (d)  The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.

   (e)  This order shall take effect immediately.

KATHLEEN A. MCGINTY,   
Chairperson

   (Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 36 Pa.B. 362 (January 21, 2006).)

   Fiscal Note: Fiscal Note 7-393 remains valid for the final adoption of the subject regulation.

Annex A

TITLE 25. ENVIRONMENTAL PROTECTION

PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION

Subpart D. ENVIRONMENTAL HEALTH AND SAFETY

ARTICLE VII. HAZARDOUS WASTE MANAGEMENT

CHAPTER 261a. IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

Subchapter D. LISTS OF HAZARDOUS WASTES

§ 261a.32 Hazardous wastes from specific sources.

   In addition to the requirements for lists of hazardous wastes incorporated by reference in 40 CFR 261.32 (relating to hazardous waste from specific sources), the solid wastes listed in Appendix IXa (relating to wastes excluded under 25 Pa. Code § 260a.20 and 40 CFR 260.20 and 260.22) are excluded under §§ 260a.1 and 260a.20 (relating to incorporation by reference, purpose, scope and applicability; and rulemaking petitions).

APPENDIX IXa. WASTES EXCLUDED UNDER 25 Pa. Code § 260a.20 AND 40 CFR 260.20 AND 260.22.

Table 2a. Wastes Excluded from Specific Sources

Facility	Address	Waste Description
Max Environmental Technologies, Inc.	233 Max Lane Yukon, PA 15698	Electric arc furnace dust (EAFD) that has been treated on site by MAX Environmental Technologies, Inc. (MAX) at a maximum annual rate of 300,000 cubic yards per year and disposed of in a Permitted Resource Conservation and Recovery Act Subtitle D/ Pennsylvania Class 1 residual waste landfill that has groundwater monitoring.
		(1)  Delisting Levels:
		(i)  The constituent concentrations measured in either of the extracts specified in paragraph (2) may not exceed the following levels (mg/L): Antimony-0.206; Arsenic-0.0094; Barium-21; Beryllium-0.416; Cadmium-0.11; Chromium-0.60; Lead-0.75; Mercury-0.025; Nickel-11.0; Selenium-0.58; Silver-0.14; Thallium-0.088; Vanadium-21.1; Zinc-4.3.
		(ii)  Total mercury may not exceed 1 mg/kg.
		(2)  Verification Testing:
		(i)  On a batch basis, MAX must analyze a representative sample of the waste using the following:
		(A)  The Toxicity Characteristic Leaching Procedure (TCLP) , test Method 1311 in ''Test Methods for Evaluating Solid Waste. Physical/Chemical Methods.'' EPA publication SW-846, as incorporated by reference in 40 CFR 260.11.
		(B)  The TCLP as referenced above with an extraction fluid of pH 12 +0.05 standard units.
		(C)  SW-846 Method 7470 for mercury.
		(ii)  The constituent concentrations measured must be less than the delisting levels established in paragraph (1).
		(3)  Changes in Operating Conditions:
		(i)  If any of the approved EAFD generators significantly changes the manufacturing process or chemicals used in the manufacturing process or MAX significantly changes the treatment process or the type of chemicals used in the treatment process, MAX must notify the Department of the changes in writing.
		(ii)  MAX must handle wastes generated after the process change as hazardous until MAX has demonstrated that the wastes continue to meet the delisting levels set forth in paragraph (1) and that no new hazardous constituents listed in Appendix VIII of Part 261 have been introduced and MAX has received written approval from the Department.
		(4)  Data Submittals:
		(i)  MAX must submit the data obtained through routine batch verification testing, as required by other conditions of this rule or conditions of the permit, to the Pennsylvania Department of Environmental Protection Southwest Region, 400 Waterfront Drive, Pittsburgh, Pennsylvania 15222.
		(ii)  The data from the initial full scale batch treatments following permit modification and construction of the treatment unit shall be submitted to the Department as it becomes available and prior to disposal of those batches.
		(iii)  The data submission frequency can be modified by the Department upon demonstration that the treatment method is effective.
		(iv)  All data must be accompanied by a signed copy of the certification statement in 40 CFR 260.22(i)(12).
		(v)  MAX must compile, summarize, and maintain on site for a minimum of 5 years records of operating conditions and analytical data. MAX must make these records available for inspection.
		(5)  Reopener Language:
		(i)  If, at any time after disposal of the delisted waste, MAX possesses or is otherwise made aware of any data for any of the approved disposal facilities (including but not limited to leachate data or groundwater monitoring data) relevant to the delisted waste indicating that any constituent identified in paragraph (1) is at a level in the leachate higher than the delisting level established in paragraph (1), or is at a level in the groundwater higher than the specific facility action levels, then MAX or the disposal facility must report such data, in writing, to the Regional Director of the Pennsylvania Department of Environmental Protection Southwest Region within 10 days of first possessing or being made aware of that data.
		(ii)  Based on the information described in subparagraph (i) and any other information received from any source, the Regional Director will make a preliminary determination as to whether the reported information requires Department action to protect human health or the environment. Further action may include suspending or revoking the exclusion or other appropriate response necessary to protect human health and the environment.
		(iii)  If the Regional Director determines that the reported information does require Department action, the Regional Director will notify MAX in writing of the actions the Regional Director believes are necessary to protect human health and the environment. The notice shall include a statement of the proposed action and a statement providing MAX and/or the approved disposal facility with an opportunity to present information as to why the proposed Department action is not necessary or to suggest an alternative action. MAX and/or the approved disposal facility shall have 30 days from the date of the Regional Director's notice to present the information.
		(iv)  If after 30 days MAX and/or the approved disposal facility presents no further information, the Regional Director will issue a final written determination describing the Department actions that are necessary to protect human health or the environment. Any required action described in the Regional Director's determination shall become effective immediately, unless the Regional Director provides otherwise.

[Pa.B. Doc. No. 06-219. Filed for public inspection February 10, 2006, 9:00 a.m.]