V
Tuesday
June 27, 1989
Part V
Environmental
Protection Agency
40 CFR Part 260
Hazardous Waste Management System:
Requirements of Rulemaking Petitions;
Rnai Rule
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27114 Federal Register /' Vol. 54, No. 122 / Tuesday, June 27, 1989 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 260
[SW-FRL-3532-2]
Hazardous Waste Management
System: Requirements of Rulemaktng
Petitions
AGENCY: Environmental Protection'
Agency.
ACTION: Final rule.
SUMMARY: On November 8,1984, the
President signed into law the Hazardous
and Solid Waste Amendments (HSWA)
of 1984.'These amendments changed the
hazardous waste management system
established by the Resource
Conservation and Recovery Act
(RCRA), 42 U.S.C. 6821 et seq. One of
IISWA's several requirements was to
establish additional and more specific
criteria for evaluating petitions
submitted under 40 CFR 260.20 and
260.22, to exclude ("delist") specific
wastes from the lists of hazardous
wastes contained in 40 CFR 231.31,
281.32 and 281.33. EPA incorporated' -"
these new HSWA criteria into its
delisting rules by adding a new
paragraph to 40 CFR 260.22 (a), (c), (d),
and (e). [See 50 FR 28727-28728, July 15.
1985.] However, at that time, EPA
inadvertently failed to alter 40 CFR
260,22(b) when modifying the other
portions of § 260.22, to ensure that the
entire delisting program is consistent
with HSWA. On May 20.1988, EPA
proposed to amend the defisting rules to
clarify the potential ambiguity created
by that oversight and to fully reflect the
HSWA requirements. [See 53 FR 18107.]
Today's rule responds to comments on
that proposal and makes me changes to
§ 280.22(b).
EFFECTIVE DATE: June 27,1989;
ADDRESSES: The public docket for this
final rule is located at the U.S.
Environmental Protection Agency, 401M
Street SW., Room M2427, Washington.
DC 20460, and is available for viewing
from 9:00 a.m. to 4:00 p.m., Monday
through Friday excluding.Federal
holidays. Call (202) 475-9327 for
appointments. The reference number for
this docket is "F-88-RRPA-FFFFF." The
public may copy material from any
regulatory docket at a cost of $0.15 per
page.
FOR FURTHER INFORMATION CONTACT:
For generallnformaUon, contact the .
RCRA Hotline, toll free at (800] 424-
9348, or at (202) 382-3000. For technical
information concerning this rule, contact
Linda Cessar, Office of Solid Waste
(OS-343), U.S. Environmental Protection
Agency, 401 M Street SW., Washington
DC 20480, (202) 475-9828.
SUPPLEMENTARY INFORMATION:
L Background
A. Authority
These regulations are issued under the
authority of Sections 1004, 2002(a), 3001.
3006, and 7004 of the Solid Waste
Disposal Act as Amended (42 U.5.C.
6903, 6912, 6921, 6926, and 6974).
B. History of this Rulemaking
On May 20.1988 [53 FR 18107], EPA
proposed to modify 40 CFR 260.22(b) to
. clarify the potential ambiguity created
by EPA's inadvertent failure to alter that
regulation when modifying other
portions of 5 260.22 to ensure that the
delisting program is consistent with
HSWA.
As currently worded, 40 CFR 260.22(b)
can be read to imply that a petitioner
requesting exclusion of a waste need
only sample and analyze the listed
constituents of concern for hazardous
wastes in a waste mixture. Co-mingled,
non-listed solid wastes, however, may
' contain the same and/or additional
constituents of concern as those found
hi the listed wastes alone. Under 40 CFR
261.3(a)(2)(iv) and 261.3(b), mixtures of
solid wastes and listed hazardous
wastes are considered listed hazardous
wastes. Making delisting decisions for
such mixed waste streams without
considering the constituents hi cc-
mingled solid and listed wastes would
not fully protect human health and the
environment Further, it would not
satisfy the statutory mandate to HSWA
to consider additional factors, including
constituents other than those for which-
the waste was'listed, if EPA has a
reasonable basis to believe that such
additional factors could cause the waste
to be hazardous (see HSWA Section
3001(f)(l)). In the May 20,1988 notice,
EPA proposed that existing language in
§ 260.2(b) be deleted and that additional
. language be added to clarify that
additional factors (including additional
constitutents) in a mixture of solid
waste and hazardous waste may be
considered in the delisting evaluation.
This rulemaking addresses public
comments received on the May 20
proposal and finalizes the proposed rule.
II. Agency Response to Comments
The Agency received public
comments on the proposed rule from one
interested party. The commenter did not
support the Agency's proposed
rulemaking. The objections raised by the
commenter are discussed below.
1. Proposed rule allegedly goes
beyond the intent of HSWA.
The commenter opposes the Agency's
proposed requirement that the S
constituents of any co-mingled solid |
wastes and hazardous wastes be V
included in the evaluation of delisting
petitions. The commenter believes that
this proposed requirement goes beyond
the language and intent of HSWA.
.Citing Section 3001(f)(l) of HSWA, the
commenter believes that HSWA
requires that EPA only consider factors
(including additional constituents) for
the listed waste, and not for the waste
mixture.
Section 3001(f)(l) of HSWA states
that:
[wjhen evaluating a petition to exclude a
waste generated at a particular facility from
listing under this Section, the Administrator
shall consider factors (including additional
constituents) other than those for which the
wastes was listed if the Administrator has a
reasonable basis to believe that such
additional factors could cause the waste to
be a hazardous waste.
The Agency believes that a situation in
which a listed hazardous waste is mixed
with a solid waste presents factors,
particularly additional constituents
originally present in the solid waste,
that must be considered in such a
delisting evaluation. Further, because
EPA defines such co-mingled wastes as
listed hazardous wastes and considers "
the waste codes to "carry through" to
the mixture, the mixture must be viewed |
as a listed hazardous waste and
evaluated for additional factors. This is
described further below.
The Agency believes that the
proposed rule is consistent with the
Agency's previously developed position
(codified at 40 CFR 261.3 (a) and (b))
that mixtures of solid wastes and listed
hazardous wastes are considered
hazardous wastes unless specifically
exempted. The Agency's classification
of such waste mixtures was originally
promulgated on May 19,1980 [45 FR
33073], and clarified in an interim final
rule published on November 17,1981 [46
FR 56582]. As noted in the preamble to
the 1980 rule, the Agency intends waste
mixtures containing listed hazardous
wastes to be considered hazardous and
managed accordingly. Without such a
rule, generators could evade Subtitle C
requirements simply by co-mingling
listed wastes with non-hazardous solid
wastes.
The Agency recognized, however, that
designating all waste mixtures
containing wastes listed as hazardous
under Subtitle C could create some
inequities. Thus, in the November 1981
rule, the Agency excluded f . * the
presumption of hazardousm. certain /'
types of mixtures of listed hazardous \
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Federal Register / Vol. 54. No. 122 / Tuesday. June 27. 1989 / Rules and Regulations
27115
wastes and wastewaters. and mixtures
of solid wastes and listed hazardous
wastes which are listed soleiy because
they exhibit one or more of the
hazardous waste characteristics, but
which no longer exhibit any hazardous
waste characteristic defined in Subpart
C [See 40 CFR 281.3 (a) and (b) of the
regulations excluding certain waste
mixtures from the presumption of
hazardousness. See 40 CFR 281.21,
261.22, 261.23 and 281.24 for the
hazardous waste characteristics.}
The November 1981 rule did not.
however, exclude from the presumption •
of hazardousness those waste mixtures
of solid wastes and listed hazardous
wastes which are listed because they
typically contain hazardous constituents
(contained in Appendix VIII of 40 CFR
Part 261) at levels of regulatory concern.
(The rule also did not exclude acutely
toxic mixtures from the presumption.)
Such waste mixtures were designated as
hazardous to minimize any threats to
human health and to the environment
that may occur when hazardous and
solid wastes are mixed. Often
hazardous constituents present in the
listed waste (whether these constituents
were the basis for listing the waste
genetically) remain present in
hazardous concentrations after the
listed waste is mixed with non-
hazardous solid waste. Similarly, some
solid wastes contain constituents which
by themselves are not considered
hazardous; when these non-hazardous
constituents are mixed with listed
hazardous wastes, the previously non-
hazardous constituents may be rendered
hazardous through any number of
chemical interactions (such as oxidation
or reduction reactions). Thus, if the
resultant waste mixture is mismanaged,
previously existing or newly formed
hazardous constituents may escape into
the environment at levels of concern.
The RCRA regulations which
establish the lists of hazardous wastes
therefore presume that the solid wastes
mixed with listed hazardous wastes are
generally hazardous. Considering
hazardous constituents (that were not
the basis for listing the waste as
hazardous) present in some mixtures is
therefore consistent with the HSWA
requirement that delisting evaluations
consider additional factors which could
cause the petitioned waste to be a
hazardous waste. Congress, in passing
section 3001(f), was fully aware of how
EPA regulated waste mixtures, and
chose to eliminate a perceived loophole
by which listed wastes (including
mixtures) were deregulated although
containing hazardous levels of
additional (non-listed) constituents. See
H.R. Rep. No. 98-198. 98th Cong., 1st
Sess.. 57-58 (1983).
The hazardous constituents in a solid
waste co-mingled with one or more
listed hazardous wastes can clearly be
considered'relevant additional factors.
given EPA's regulatory approach
described above, and evaluating such
constituents is therefore fully within the
intent of HSWA. Further, unless the
mixed waste petitioned to be delisted
were separated into its formative,
unmixed waste streams, it would not be
possible to know whether an additional
constituent was originally present in the
listed hazardous waste of the unlisted,
non-hazardous solid waste. Finally,
even if such consideration of additional
constituents in listed waste mixtures
was not compelled by section 3001(f),
EPA would, through today's rulemaking,
adopt the proposed rule to clarify that
EPA can consider such additional
constituents.
2. Proposed rule allegedly is an
arbitrary and capricious action.
The commenter believes the Agency's
proposed rulemaking is arbitrary and
capricious when applied to a mixture of
a listed (or derived-from a listed under
40 CFR 261.3(c)(2)(i)) hazardous waste
and a solid waste, where the solid waste
itself is a delisted (or derived-from a
delisted) waste (i.e., a waste which EPA
has already excluded).'
The Agency has not exempted from
the presumption of hazardousness those
waste mixtures that consist of listed
hazardous wastes and solid wastes,
when the solid wastes are delisted or
derived-from a delisted waste. The
whole waste mixture is presumed
hazardous until proven otherwise (i.e..
excluded under 40 CFR 260,20 and
260.22). HSWA did not indicate that
previously delisted solid wastes, wastes
derived-from those wastes, and/or
constituents in these delisted or derived-
from wastes were not to be considered
in the delisting evaluation when these
wastes were mixed with listed
hazardous wastes. Delisted wastes
continue to be solid wastes and are
subject to the mixture rule described
above. [The Agency has not to date
delisted a waste which it believes
exhibits any of the hazadous waste
characteristics. Once a waste is
delisted, generators remain obligated to
determine whether or not their waste
remains non-hazardous based on the
hazardous waste characteristics.]
When evaluating a delisting petition
for a waste mixture of a listed
hazardous waste and a previously
delisted waste (i.e.. solid waste), the
Agency must consider the potential for
the hazardous waste to leach
constituents of concern from the solid
waste. These waste'mixtures are
presumptively hazardous just as
mixtures of listed wastes with non-
delisted, non-hazardous solid wastes;
consideration of additional factors
(including additional constituents) of
mixtures of listed and deiisted wastes is
appropriate for the reasons described in
the previous section.
. 3. Proposed rule allegedly is unjustly
retroactive to pending delisting
petitions.
The commenter believes the proposed
action violates procedural and
substantive due process to the extent it
is applied retroactively to pending
delisting petitions.
The Agency disagrees with the
commenter and believes that today's
rule merely codifies the intent of HSWA
and thus, any application to pending .
delisting petitions is due to the
application of the statute and not to
today's rule amendment Further, any
current application of these criteria to
pending petitions is prospective, not
retroactive. Finally, even if today's rale
was not compelled by HSWA, its
current application to pending petitions
would be permissible under applicable
law established by Securities and
Exchange Commission v. Cheney Corp.,
332 U.S. 155 (1947), and its progeny, and
"good cause'* exists for any retroactive
application mat might be construed, see
• Citizens to Save Spencer County v. EPA
600 F. 2nd 844, 880-81 (D.C. Cir. 1979),
based Upon past legislative and
regulatory announcements.
4. Proposed rule allegedly unjustly
incorporates derived-from hazardous
wastes.
The commenter believes the proposed
action violates procedural and
substantive due process to the extent it
incorporates derived-from hazardous
wastes.
On May 19,1980 [45 FR 33073), the
Agency promulgated regulations.
codified at 40 CFR 261.3(c)(2)(i), listing
as hazardous those wastes which are
derived from listed wastes. Thus, a
derived-from waste is subject to the
same Subtitle C regulations as all other
types of hazardous wastes. When
Congress enacted HSWA, this derived-
from rule had been effective for four
years. EPA will not respond to the
comment to the extent that the
commenter is attempting to challenge
collaterally EPA's previously
promulgated rule. However, given that
these derived-from wastes are
hazardous wastes of the same waste
code as the lister astes from which
they are derived. . 'A does not believe
that applying the plain terms of Section
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27116 Federal Register / Vol. 54. No. 122 / Tuesday. June 2/V 1989 j Rule* and Regulations
3001(f](l) to these wastes can deny due
process.
Although derived-from hazardous
wastes or mixtures of listed waste and
solid waste are not explicitly mentioned
In the statute, the legislative history to
new Section 3001(f) of RCRA shows that
Congress was concerned thatEPA's
delisting evaluation wa*. in general, too
narrow in scope. Congress believed that
limiting the analysis to listed
constituents could allow the Agency to
"de-regulate" a waste that contained
other harmful constituents. See H.R.
Rep. No. 98-198,98th Cong^ 1st Sess.,
57-58 (1983). Consequently, Congress
: amended RCRA to direct the Agency to
consider factors (including additional
constituents) other than those for which
the waste was listed if the
Administrator has a reasonable basis to
believe that such additional factors
could cause the waste to be a hazardous
waste. Congress did not provide specific
examples of "additional factors".
Further, Congress did not specify, and
the Agency does not believe that
Congress intended* that application of
this analysis be limited, excluding
application to derived-from wastes and
mixtures of listed hazardous wastes and
solid wastes.
5. Proposed rule allegedly is a major
action.
The commenter believes the proposed
amendment goes "far beyond HSWA"
and does not merely incorporate or
codify a statutory requirement, but is
"major" and is subject to regulatory
impact analysis under Executive Order
12291.
Under the Executive Order, a major
rule is any regulation that is likely to
result in:
1. An annual effect on the economy of
$100 million or more;
2. A major increase hi costs or prices
for consumers, individual industries.
Federal. State or local government
agencies, or geographic regions; or
3. Significant adverse effects on
competition, employment, investment,
productivity, innovation or on the ability
of United States-based enterprises to
compete with foreign-based .enterprises
in domestic or export markets.
The Agency believes that today's rule
does not meet these criteria for a major .
regulation. This rule will not approach
any of the criteria listed above, because
only a small number of facilities
petitioning for delisting will be affected
by this rule. Further, as explained
above, this rule merely codifies existing
statutory requirements and has no
Independent effect
6. Proposed rule allegedly requires a
regulatory flexibility analysis.
The commenter believes that the
proposed amendment "may require a
significant change in the amount of
information required for RCRA delisting
petitions, since HSWA does not require
information on factors beyond those of
the listed hazardous waste." As such,
the commenter believes that the
proposed amendment may have an
adverse economic impact on small
entities and that a regulatory flexibility
analysis is required by the Regulatory
Flexibility Act. 5 U.S.C. 601-612.
Section 3001(f) of HSWA clearly
states that the Administrator shall
consider factors (including additional
constituents) other-man those for which
the waste was listed if the
Administrator has a reasonable basis to
believe that such additional factors
could cause the waste to be a hazardous
waste. As noted earlier, the Agency
believes that a hazardous waste co-
mingled with a solid waste is a
hazardous waste, and the mixture is
subject to the Section 3001(f)
requirements for a delisting
demonstration, including evaluation of
• additional constituents. Thus, a
Regulatory Flexibility Analysis is not
necessary, because the Agency is
merely codifying existing statutory
requirements, and this rule has no
independent effect. Even if a Regulatory
Flexibility Analysis were applicable,
only a small number of facilities will be
affected by this rule, and it will not
require a significant increase in the
amount of information required for
delisting petitions.
III. Effective Date
This rule is effective immediately. 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 merely incorporates
and codifies a statutory requirement.
This reason provides a basis for making
this rule effective immediately, upon
promulgation, under the Administrative
Procedures Act, pursuant to 5 U.S.C.
553(d).
IV. State Authority
Because this rule merely eliminates
potential confusion as to existing
regulatory requirements that were
established on July 15.1985 (50 FR
28702), this rule does not affect
authorization status in regard to
delisting. States currently authorized for
delisting have already been required to
provide the minimum Federal statutory
level of protection to be authorized.
V. Regulatory Impact
Under Executive Order 12291, EPA
must judge whether a regulation is
"major" and therefore, subject to the
requirement of a Regulatory Impact
Analysis. As discussed in Section II3
above, this rule is not major since it
merely incorporates and codifies a
statutory requirement Furthermore, it
does not meet any of the criteria for a
major regulation. Therefore, no
Regulatory Impact Analysis is required.
VI. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act. 5 U.S.C. 601-612. whenever an
agency is required to publish a general
notice of rulemaking for any proposed ur
final rule, it must prepare and make
available for public comment a
regulatory flexibility analysis which
describes the impact of the rule on small
entities (i.e., small businesses, small
organizations, and small governmental
jurisdictions). The Administrator may
certify, however, that the rule will not
have a significant economic impact oh
small entities.
As discussed in Section IL6 above.
this rule merely codifies existing
statutory requirements. Furthermore,
only a small number of facilities will be
affected by this rule, and it will not
require a significant increase in the
amount of information required.
Accordingly, I hereby certify that this
regulation will not have a significant
economic impact on a substantial
number of small entities. This
regulation, therefore, does not require a
regulatory flexibility analysis.
VIL List of Subjects in 40 CFR Part 261
Hazardous materials. Waste treatment
and disposal. Recycling
Authority: 42 U.S.C. 6903, 8912.0921, 6926.
6974.
Date: June 20.198*
William K. ReUty,
Administrator.
For the reasons set out in the
preamble. Part 260 of Chapter I of Title
40 of the Code of Federal Regulations is
amended as follows:
1. The authority citation for Part 26
continues to read as follows:
Authority: 42 U.S.C. 6903,6012,6321. 6926.
6974.
2. Section 250.22 is amended by
revising paragraph (b) to read as
follows:
§260.22 Petitions to amend Part 261 to
exclude a waate produced at a particular
facility.
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Federal Register / Vol. 54. No. 122 / Tuesday, June 27, 1989 / Rules and Regulations
(b) The procedures in this Section and
§ 280.20 may also be used to petition the
Administrator for a regulatory
amendment to exclude from
§ 281.3(a)(2)(ii) or (c), a waste which is
described in these Sections and is either
a waste listed in Subpart D, or is derived
from a waste listed in Subpart D. This
exclusion may only be issued for a '
particular generating, storage, treatment,
or disposal facility. The petitioner must
make the same demonstration as
required by paragraph (a) of this section.
Where the waste is a mixture of solid
waste and one or more listed hazardous
wastes or is derived from one or more
hazardous wastes, his demonstration
must be made with respect to the waste
mixture as a whole; analyses must be
conducted for not only those
constituents for which the listed waste
contained in the mixture was listed as
hazardous, but also for factors
(including additional constituents) that
could cause the waste mixture to be a
hazardous waste. A waste which is so
excluded may still be a hazardous waste
by operation of Subpart C of Part 261.
* * * * . *
[FR Doc. 89-15168 Filed 6-26-89; 8:45 am]
Biti!««a CODE asso-so-a
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