
[Federal Register: October 7, 2010 (Volume 75, Number 194)]
[Proposed Rules]               
[Page 62040-62048]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07oc10-22]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R03-RCRA-2010-0132; FRL-9211-7]

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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA, also the Agency or 
we in this preamble) is proposing to grant a petition submitted by 
Babcock & Wilcox Nuclear Operations Group, Inc., the current owner, and 
to BWX Technologies, Inc., as predecessor in interest to the current 
owner, identified collectively hereafter in this preamble as ``B&W 
NOG,'' to exclude (or delist) on a one-time basis from the lists of 
hazardous waste, a certain solid waste generated at its Mt. Athos 
facility near Lynchburg, Virginia.
    The Agency has tentatively decided to grant the petition based on 
an evaluation of specific information provided by the petitioner. This 
tentative decision, if finalized, would conditionally exclude the 
petitioned waste from the requirements of the hazardous waste 
regulations under the Resource Conservation and Recovery Act (RCRA).
    The Agency is requesting comments on this proposed decision.

DATES: To make sure we consider your comments on this proposed 
exclusion, they must be received by November 22, 2010. Comments 
received after the close of the comment period will be designated as 
late. These late comments may not be considered in formulating a final 
decision.
    Any person may request a hearing on this tentative decision to 
grant the petition by filing a request by October 22, 2010. The request 
must contain the information prescribed in 40 CFR 260.20(d).

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
RCRA-2010-0132 by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov: 
Follow the on-line instructions for submitting comments.
     E-mail: friedman.davidm@epa.gov.
     Mail: David M. Friedman, Environmental Protection Agency 
Region III, Land and Chemicals Management Division, Office of Technical 
and Administrative Support, Mail Code: 3LC10, 1650 Arch Street, 
Philadelphia, PA 19103-2029.
     Hand Delivery or Courier: Deliver your comments to: David 
M. Friedman, Environmental Protection Agency Region III, Land and 
Chemicals Management Division, Office of Technical and Administrative 
Support, Mail Code: 3LC10, 1650 Arch Street, Philadelphia, PA 19103-
2029. Comments delivered in this manner are only accepted during normal 
hours of operation.
    Instructions: Direct your comments to Docket ID No. EPA-R03-RCRA-
2010-0132. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www/regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and that is made available on the Internet. 
If you submit an electronic comment, EPA recommends that you include 
your name and other contact information in the body of your comment and 
with any disk or CD-ROM you submit. If EPA cannot read your comment due 
to technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www/epa/gov/
epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, Land and Chemicals Division, Office of Technical and 
Administrative Support, Mail Code: 3LC10, 1650 Arch Street, 
Philadelphia, PA 19103-2029. The hard copy RCRA regulatory docket for 
this proposed rule, EPA-R03-RCRA-2010-0132, is available for viewing 
from 8 a.m. to 3 p.m., Monday through Friday, excluding Federal 
holidays. You may copy material from any regulatory docket at a cost of 
$0.15 per page for additional copies. EPA requests that you contact the 
person listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. You should make an appointment with the 
office at least 24 hours in advance.

FOR FURTHER INFORMATION CONTACT: For further technical information 
concerning this document or for appointments to view the docket or the 
B&W NOG facility petition, contact David M. Friedman, Environmental 
Protection Agency Region III, Land and Chemicals Division, Office of 
Technical and Administrative Support, Mail Code: 3LC10, 1650 Arch 
Street, Philadelphia, PA 19103-2029, by calling 215-814-3395 or by e-
mail at friedman.davidm@epa.gov.

[[Page 62041]]


SUPPLEMENTARY INFORMATION: The information in this preamble is 
organized as follows:

I. Background
    A. What is a listed hazardous waste?
    B. What laws and regulations give EPA the authority to delist 
waste?
    C. What is a delisting petition?
II. What did B&W NOG request in its petition?
III. Waste-Specific Information
    A. How was the waste generated?
    B. What information did B&W NOG submit to support its petition?
IV. EPA's Evaluation of the Petition
    A. What method did EPA use to evaluate risk?
    B. What other factors did EPA consider in its evaluation?
    C. What conclusion did EPA reach?
V. Conditions for Exclusion
    A. What conditions are associated with this exclusion?
    B. What happens if B&W NOG fails to meet the conditions of this 
exclusion?
VI. How would this action affect states?
VII. When would the proposed exclusion be finalized?
VIII. Statutory and Executive Order Reviews

I. Background

A. What is a listed hazardous waste?

    EPA published amended lists of hazardous wastes from non-specific 
and specific sources on January 16, 1981, as part of its final and 
interim final regulations implementing Section 3001 of RCRA. These 
lists have been amended several times, and are found at 40 CFR 261.31 
and 261.32.
    We list these wastes as hazardous because: (1) 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 (2) they meet the criteria 
for listing contained in 40 CFR 261.11(a)(2) or (a)(3).
    We also define residues from the treatment, storage, or disposal of 
listed hazardous wastes and mixtures containing listed hazardous wastes 
as hazardous wastes. (See 40 CFR 261.3(a)(2)(iv) and (c)(2)(i), 
referred to as the ``mixture'' and ``derived-from'' rules, 
respectively).

B. What laws and regulations give EPA the authority to delist waste?

    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 that would otherwise meet 
the listing description may not be.
    For this reason, a procedure to exclude or delist a waste was 
established based on the discretionary authority of Section 2002(a)(1) 
of RCRA. This procedure is contained in 40 CFR 260.20 and 260.22 and it 
allows a person to petition EPA or an authorized state in order to 
demonstrate that a specific listed waste from a particular generating 
facility should not be regulated as a hazardous waste.

C. What is a delisting petition?

    A delisting petition is a request from a facility to EPA or an 
authorized State to exclude waste from the list of hazardous wastes on 
a site-specific basis. A facility petitions EPA because it does not 
believe the waste should be hazardous under RCRA regulations.
    In a delisting petition, the petitioner must show that waste 
generated at a particular facility does not meet any of the criteria 
for which the waste was listed. The criteria which EPA uses to evaluate 
a waste for listing are found in 40 CFR 261.11. An explanation of how 
these criteria apply to a waste is contained in the background document 
for that particular listed waste.
    In addition to the criteria that we used when we originally listed 
the waste, a petitioner must demonstrate that the waste does not 
exhibit any of the hazardous waste characteristics found in 40 CFR part 
261, subpart C, and must present sufficient information for EPA to 
decide whether factors other than those for which the waste was listed 
warrant retaining it as a hazardous waste as required by Section 
3001(f) of RCRA (42 U.S.C. 6921(f)) and 40 CFR 260.22(a).
    Generators remain obligated under RCRA to confirm that their waste 
remains nonhazardous based on the hazardous waste characteristics even 
if EPA or an authorized state has ``delisted'' the waste and to ensure 
that future generated wastes meet the conditions set forth.

II. What did B&W NOG request in its petition?

    On September 30, 1994, B&W NOG (then known as Babcock and Wilcox) 
petitioned EPA to exclude from the lists of hazardous waste listed at 
40 CFR 261.31, both past and currently generated sludge produced by its 
wastewater treatment facility. This sludge was derived from the 
treatment of wastewaters in the pickle acid treatment system and was 
designated as EPA Hazardous Waste No. F006 (wastewater treatment sludge 
from electroplating operations). On August 9, 1999 (64 FR 42317), EPA 
proposed, and on January 14, 2000 (65 FR 2337), EPA finalized, a 
conditional exclusion for the facility (then known as BWX Technologies) 
delisting the currently generated filter cake solids from its pickle 
acid wastewater treatment system.
    As explained in EPA's proposed exclusion of August 4, 1999, the 
previously generated sludge was 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.
    RCRA regulations are promulgated under one of two statutory 
authorities which are (1) the original RCRA authority (or base program) 
and (2) the Hazardous and Solid Waste Amendments of 1984 (HSWA). The 
hazardous components of mixed wastes are subject to RCRA base program 
jurisdiction. 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 are 
promulgated or enacted, the state is obligated to enact equivalent 
authority within specified time frames. New federal requirements do not 
take effect in authorized states until the state adopts the 
requirements as state law.
    Up until 1986, the applicability of RCRA to mixed waste was 
unclear. To address this issue, EPA issued a clarification notice on 
July 3, 1986 (51 FR 24504). In that notice, EPA announced that the 
hazardous component of mixed waste was subject to RCRA jurisdiction and 
that the radioactive portion of the waste (source, special nuclear, and 
by-product material) was 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 to EPA for authorization of their revised program. The 
Commonwealth of Virginia had been granted authorization to administer 
the RCRA base program prior to July 3, 1986. However, when EPA granted 
the above referenced exclusion on January 14, 2000, Virginia had not 
been specifically authorized for mixed waste.
    In a State which was authorized for the RCRA base program, but not 
specifically authorized for mixed waste, the waste was not subject to 
the Federal hazardous waste requirements. Mixed waste remained outside 
Federal jurisdiction until the State revised its program and received 
authorization specifically for mixed waste. Therefore,

[[Page 62042]]

at the time of the January 14, 2000 exclusion, EPA could not consider 
the previously generated sludge at B&W NOG for exclusion.
    The Virginia Department of Environmental Quality's (VADEQ's) 
authorization for the mixed waste portion of the RCRA program became 
effective on September 29, 2000. At that time, mixed waste in the 
Commonwealth of Virginia became subject to Federal RCRA jurisdiction.
    Beginning in May 2001, B&W NOG informally submitted information on 
the sludge that was deposited in two on-site surface impoundments 
designated as Final Effluent Ponds (FEPs) 1 and 2. Because FEP 1 
received effluent from the low level radioactive waste treatment system 
in the past and FEP 2 currently receives effluent from the low level 
radioactive waste treatment system, the FEP sludge in both units 
includes a Nuclear Regulatory Commission (NRC) regulated radioactive 
component, and therefore, is a mixed waste designated as EPA hazardous 
waste No. F006.
    On February 21, 2003, BWX Technologies, Inc. petitioned EPA to 
exclude from the lists of hazardous waste contained in 40 CFR 261.31 on 
a one-time basis, the sludge which was deposited in FEPs 1 and 2 
because it believed that the petitioned waste did not meet any of the 
criteria for which the waste was listed and because there were no 
additional constituents or factors that would cause the waste to be 
hazardous. The volume of sludge contained in each FEP was, at that 
time, determined to be 6,600 cubic yards, for a combined sludge volume 
of 13,200 cubic yards.
    On September 3, 2008, B&W NOG notified EPA that it had successfully 
completed a sludge removal project at FEPs 1 and 2. Sludge was removed 
from these units and disposed of at a mixed waste disposal facility 
permitted under the authority of both RCRA and the Atomic Energy Act, 
as amended. B&W NOG conservatively estimated that of the 13,200 cubic 
yards of sludge in both units, only 148 cubic yards (less than 2 
percent of the original volume) remained. In this notification, B&W NOG 
requested that its petition be amended to reflect the reduced volume, 
and that the Agency proceed with the delisting request based on the new 
volume.

III. Waste-Specific Information

A. How was the waste generated?

    B&W NOG is engaged in the production and assembly of nuclear 
components primarily for the United States government at its Mt. Athos 
facility near Lynchburg, Virginia. This activity includes the use of 
special nuclear materials, primarily unirradiated enriched uranium. B&W 
NOG's operations include the recovery and purification of scrap uranium 
and uranium downblending. B&W NOG's operations are regulated under 
Nuclear Regulatory Commission License SNM-42.
    B&W NOG is primarily a metal fabricator (SIC No. 3443), involving 
the fabrication of metal components from stock metals through various 
machining processes, welding, grinding, pickling and final assembly. 
Secondary operations include the recovery of uranium fuel, the research 
and development of uranium fuel manufacturing techniques and 
downblending operations.
    Hydrofluoric acid and nitric acid are used in combination by B&W 
NOG in the pickling and cleaning of specialty metals. Some of these 
spent pickling and cleaning solutions and rinse waters are treated on-
site in the pickle acid and low level radioactive wastewater treatment 
systems.
    Support facilities at the Mt. Athos site include a steam plant, 
process water treatment and wastewater treatment facilities.
    The Lynchburg Technology Center (LTC) houses B&W NOG headquarters, 
B&W Nuclear Power Generation Group, Inc. laboratories and B&W Corporate 
Service Centers. Wastewater generated at the LTC is piped to the B&W 
NOG for treatment. Solid wastes produced at the LTC are delivered to 
B&W NOG for recycling and/or disposal.
    The wastewaters generated at the B&W NOG facility are treated in an 
on-site wastewater treatment plant that consists of four discrete 
wastewater treatment systems. They are the low level radioactive waste 
treatment system, pickle acid waste treatment system, sanitary waste 
treatment system, and water production waste treatment system. Once-
through non-contact cooling water does not require treatment and 
discharges directly to FEP 1. Both FEPs have each received a 
combination of these wastewater streams during their operating history.
    The FEPs are two surface impoundments located adjacent to the James 
River at the B&W NOG Mt. Athos site. The FEPs are part of the VADEQ 
permitted industrial wastewater system (Virginia Pollutant Discharge 
Elimination System (VPDES) Permit No. VA0003697) and they provide 
equalization of the liquid effluent for control of pH and suspended 
solids.
    B&W NOG's wastewater neutralization processes generate 
precipitation solids which are removed by filter presses. The remaining 
suspended solids are discharged with wastewater and gradually 
accumulate in the FEPs as sludge. The FEP sludge consists in part of 
suspended solids which carry over into the units in the effluent from 
the filter presses that remove solids in the pickle acid waste 
treatment system, and additional suspended solids which enter the units 
from the low level radioactive, and grit-blast wastewater treatment 
systems.
    FEP 1 was placed in service in 1973, with a nominal capacity of 
2,000,000 gallons. FEP 2 was placed in service in 1979, with a nominal 
capacity of 1,900,000 gallons. Although the routing of treated 
wastewaters into these FEPs has changed throughout the operating 
history of the units, at some point in their history they have both 
received suspended solids from the pickle acid treatment system and the 
low level radioactive treatment system, as well as various process or 
sanitary wastewaters. It is the pickle acid treatment system suspended 
solids that resulted in the formation of F006 sludge prior to the 
January 14, 2000 delisting.
    The current configuration of wastewater streams discharged to each 
FEP is as follows:
    FEP 1 receives non-industrial processing operations wastewater 
consisting of wastewater from the water production (deionized and make-
up non-contact cooling water) treatment system and once through non-
contact cooling water.
    FEP 2 receives industrial processing operations wastewater 
consisting of wastewater from the pickle acid waste treatment system, 
the low level radioactive treatment system and the grit blast waste 
treatment system.
    Wastewater from the sanitary waste treatment system discharges 
directly to the James River through a VPDES permitted outfall.

B. What information did B&W NOG submit to support its petition?

    To provide a comprehensive sludge sampling strategy of the FEPs, a 
two-phase sampling and analysis plan was implemented by B&W NOG.
    Phase 1 involved the collection of fully penetrating core samples 
of sludge from four representative locations in each FEP. These samples 
were analyzed for a comprehensive list of chemical constituents and 
other analytical parameters, including the 40 CFR Part 264 Appendix IX 
(Ground-Water Monitoring List) analytes for the metal, volatile organic 
carbon, semivolatile

[[Page 62043]]

organic compound, polychlorinated biphenyl (PCB), and dioxin/furan 
groups; plus formaldehyde, based on process knowledge. Other analytical 
parameters included total cyanide, fluoride, oil and grease, sulfide, 
water content, corrosivity and ignitability. The sludge 
characterization included analyses for both total concentrations and 
toxicity characteristic leaching procedure (TCLP) concentrations. In 
addition to the standard TCLP performed on all samples using an acidic 
leaching fluid, one sample from each FEP was tested utilizing the TCLP 
procedure but substituting two different leaching fluids. The 
additional leaching fluids were: (1) Reagent water with a neutral pH; 
and (2) an alkaline solution of sodium bicarbonate and sodium carbonate 
with a pH of 10.
    The Phase 2 chemical characterization involved the collection and 
analysis of thirteen independent composite samples of sludge, seven 
from FEP 1 and six from FEP 2. Each composite sample was comprised of 
continuous sludge cores collected from four randomly selected locations 
within a 10,000 square foot sub-section of the unit. Samples were 
analyzed for an abbreviated list of constituents which were selected 
based on the results of the comprehensive chemical analyses performed 
on sludge samples collected in the Phase 1 chemical characterization. 
The Phase 2 analytes were fluoride, 1,2-dichloroethane, 
tetrachloroethane, trichloroethene, cadmium, copper, mercury, nickel, 
thallium, PCBs and dioxins/furans.
    The Phase 2 sludge samples were analyzed for both total and 
leachable concentrations of each analyte. In Phase 2, only one leaching 
test using the TCLP procedure was performed for each analyte. Each 
analyte was tested using the leaching fluid that produced the highest 
soluble concentration of that analyte in the Phase 1 characterization.
    The maximum total constituent and maximum leachate concentrations 
for all detected inorganic constituents in B&W NOG's waste samples are 
presented in Table 1.
    The detection limits presented in Table 1 represent the lowest 
concentrations quantifiable by B&W NOG using appropriate methods to 
analyze the waste.

  Table 1--Maximum Total Constituent and Leachate Concentrations \1\ in
                                 Sludge
------------------------------------------------------------------------
                                            Total
                                         constituent      TCLP Leachate
       Inorganic constituents           concentration     concentration
                                           (mg/kg)           (mg/l)
------------------------------------------------------------------------
Antimony............................              1.12          0.002555
Arsenic.............................              2.56          0.000972
Barium..............................              52.3             0.355
Beryllium...........................             0.429           0.00914
Cadmium.............................                14            0.0323
Chromium............................               198             0.132
Cobalt..............................              2.03            0.0546
Copper..............................              2390               633
Lead................................              7.73           0.00528
Mercury.............................               1.7         < 0.00004
Nickel..............................              93.1              2.49
Selenium............................             0.447           0.00181
Silver..............................               148            0.0351
Thallium............................             0.544           0.00481
Tin.................................               279           0.01375
Vanadium............................               9.6             0.028
Zinc................................               126              1.75
Cyanide (total).....................             0.245           0.01225
Fluoride............................               722               182
------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent
  found in any sample. These levels do not necessarily represent the
  specific levels found in any one sample.
< Denotes that the constituent was not detected at the concentration
  specified in the table.

    The maximum total constituent and maximum leachate concentrations 
for all detected organic constituents in B&W NOG's waste samples are 
presented in Table 2.
    The detection limits presented in Table 2 represent the lowest 
concentrations quantifiable by B&W NOG using appropriate methods to 
analyze the waste.

  Table 2--Maximum Total Constituent and Leachate Concentrations \1\ in
                                 Sludge
------------------------------------------------------------------------
                                            Total
                                         constituent      TCLP leachate
        Organic constituents            concentration     concentration
                                           (mg/kg)           (mg/l)
------------------------------------------------------------------------
Acetone.............................             0.371             0.212
Benzene.............................            0.0051            0.0026
Benzoic acid........................            < 4.57            0.0028
Benzo(b)fluoranthene................             0.388          < 0.0115
bis(2-Ethylhexyl)phthalate..........             2.265            0.0028
2-Butanone (methyl ethyl ketone)....            0.0544            < 0.01
Carbon disulfide....................            0.0136            < 0.01
Carbon tetrachloride................          < 0.0202            0.0024

[[Page 62044]]


Chloroform..........................          < 0.0202            0.0024
1,2-Dichloroethane..................          < 0.0202            0.0029
1,1-Dichloroethene..................          < 0.0202            0.0026
cis-1,2-Dichloroethene..............            0.0136            < 0.01
Diethylphthalate....................            < 4.57            0.0056
Diphenylamine.......................            < 4.57            0.0135
Fluoranthene........................             3.385            0.0021
2-Hexanone..........................            0.0253            < 0.01
1-Methylnaphthalene.................            < 4.57            0.0012
2-Methylnaphthalene.................            < 4.57            0.0011
3-Methylphenol (m-cresol)...........            < 4.57            0.0017
4-Nitroaniline......................            < 4.57            0.0027
Total PCBs..........................              0.23          < 0.0084
Pyrene..............................             0.535          < 0.0115
2,3,7,8-TCDD \2\....................         0.0000035     0.00000000101
Tetrachloroethene...................             0.220            0.0083
1,1,1,-Trichloroethane..............          < 0.0202            0.0014
Trichloroethene.....................               1.2             0.015
Trichlorofluoromethane..............          < 0.0202            0.0011
1,2,4-Trimethylbenzene..............            0.0232            < 0.01
m,p-Xylenes.........................          < 0.0202            0.0018
------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent
  found in any sample. These levels do not necessarily represent the
  specific levels found in any one sample.
\2\ For risk assessment of PCDDs and PCDFs compounds, toxicity values
  are expressed as 2,3,7,8-TCDD equivalents (TEQs).
< Denotes that the constituent was not detected at the concentration
  specified in the table.

    B&W NOG also submitted groundwater monitoring data to support its 
delisting request. Three groundwater monitoring wells had previously 
been installed to monitor groundwater quality in the vicinity of the 
FEPs as a requirement of VPDES Permit No. VA0003697, because it was 
thought that constituents from the FEPs may be impacting groundwater 
quality in the vicinity of the ponds. An additional groundwater 
monitoring well located further downgradient between the ponds and the 
James River was added to the monitoring network as a result of RCRA 
corrective action investigations at the site.
    Groundwater was sampled by B&W NOG over five quarters (starting in 
February 2001) to support this delisting request. These samples were 
analyzed for the 40 CFR Part 264 Appendix IX (Ground-Water Monitoring 
List) analytes for the metal, volatile organic carbon, semivolatile 
organic compound, and polychlorinated biphenyl (PCB) groups. Other 
analytical parameters included total cyanide, fluoride, and sulfide. An 
examination of the results shows that several chemicals were detected 
in one or more wells, some above an established Agency health-based 
level (e.g., a Maximum Contaminant Level (MCL) promulgated at 40 CFR 
part 141, pursuant to the Safe Drinking Water Act, 41 U.S.C. Section 
300g-1). However, in order to evaluate the source of contamination, 
upgradient and downgradient concentrations of contaminants were 
compared. Based on an evaluation of this data, it was determined that 
the FEPs are not the source of the groundwater contamination with one 
exception. Of the constituents that are elevated above a health-based 
level in downgradient wells, only fluoride cannot be attributed to a 
contamination source upgradient of the FEPs. Fluoride is present at 
elevated levels in all three of the downgradient wells and exceeded 
EPA's MCL in one of these wells with a maximum fluoride concentration 
of 18.1 mg/l.
    EPA requires that petitioners submit signed certifications 
affirming the truthfulness, accuracy and completeness of the 
information in their delisting petitions (See 40 CFR 260.22(i)(12)). 
B&W NOG submitted signed certifications stating that all submitted 
information is true, accurate and complete.

IV. EPA's Evaluation of the Petition

A. What method did EPA use to evaluate risk?

    Because the sludge that is the subject of this delisting petition 
contains low levels of radioactivity, it is, and if delisted by EPA, 
will remain subject to NRC regulations. Although the sludge currently 
resides in the FEPs and will continue to do so for many years, the FEPs 
will be subject to NRC decommissioning rules when they are taken out of 
service. At that time, any sludge remaining in the units will have to 
be removed and disposed of in a facility licensed to accept low-level 
radioactive waste.
    We evaluated B&W NOG's waste using the Agency's Delisting Risk 
Assessment Software Program (DRAS) version 3.0 to estimate the 
potential releases of waste constituents and to predict the risk 
associated with those releases. DRAS performs a multi-pathway and 
multi-chemical risk assessment to determine the potential impact of a 
waste disposed of in a landfill or surface impoundment. The sludge 
which is the subject of this petition is not a liquid, however, it 
currently resides in units that are designed as surface impoundments. 
In order to be conservative in our evaluation of potential risk, we 
performed an evaluation of this waste using the DRAS surface 
impoundment module in addition to the DRAS landfill module. The process 
that we used to adapt the sludge data for use in the surface 
impoundment module is described in the docket for this proposed rule.
    For the DRAS evaluation, we considered transport of the hazardous 
waste constituents present in the waste through groundwater, surface 
water and air. The evaluation is based on a reasonable worst-case 
(least protective)

[[Page 62045]]

disposal scenario for B&W NOG's petitioned waste even though the waste 
will remain subject to more stringent NRC disposal regulations.
    DRAS uses a fate and transport model to predict the release of 
hazardous constituents from the petitioned waste, in order to evaluate 
the potential impact on human health and the environment. DRAS 
accomplishes this using several EPA models including the EPA Composite 
Model for Leachate Migration with Transformation Products (EPACMTP) 
fate and transport model which calculates dilution/attenuation factors 
for evaluating impacts on groundwater. From a release to groundwater, 
DRAS considers routes of exposure to a human receptor of direct 
ingestion of contaminated groundwater, inhalation from groundwater 
while showering and dermal contact from groundwater while bathing.
    From a release to surface water by erosion of waste from an open 
landfill into storm water runoff, DRAS evaluates the exposure to a 
human receptor by ingestion of fish and direct ingestion of drinking 
water. From a release of volatile emissions from a surface impoundment 
and waste particles, and a release of volatile emissions to the air 
from the surface of an open landfill, DRAS considers routes of exposure 
of inhalation of volatile constituents, inhalation of particles, and 
air deposition of particles on residential soil with subsequent 
ingestion of the contaminated soil by a child.
    The volatile emission evaluation in the DRAS version 3.0 surface 
impoundment module currently does not produce valid results due to an 
operational problem with the software. Furthermore, the methodology 
currently used by DRAS to estimate volatile emissions does not produce 
a very conservative estimate of average volatile emission rates. 
Therefore, we prepared an independent calculation of volatile emissions 
from these surface impoundments using the methodologies presented in 
Chapter 5.0 (Surface Impoundments and Open Tanks) of the EPA report, 
``Air Emissions Models for Waste and Wastewater,'' November 1994, EPA-
453/R-94-080A. This report can be found at: http://www.epa.gov/ttn/
chief/software/water/air_emission_models_waste_wastewater.pdf. 
Chapter 5.0 of this report is included in the docket for this proposed 
rule.
    The calculated emission rates were then run through a dispersion 
model to estimate downwind concentrations. The methodology used is 
described in section 2.3.2.4 (Calculation of Downwind Waste Constituent 
Concentration in Air at the POE Surface Impoundment) of Chapter 2 of 
the RCRA Delisting Technical Support Document. Risk and hazard from 
these estimated downwind concentrations were determined using the 
methods presented in Chapter 4 (Risk and Hazard Assessment) of the DRAS 
Delisting Technical Support Document.
    For a detailed description of the DRAS program, the software 
itself, the Delisting Technical Support Document, and the DRAS version 
3.0 User's Guide, go to: http://www.epa.gov/reg5rcra/wptdiv/hazardous/
delisting/dras-software.html.
    In addition to the chemical constituents contained in the DRAS 
database and whose properties are described in the RCRA Delisting 
Technical Support Document, Appendix A, Chemical Specific Data, three 
additional constituents were detected in B&W NOG's sludge samples. 
These chemical constituents are 1-methylnaphthalene, 1,2,4-
trimethylbenzene, and 2-hexanone. These chemicals were added to the 
DRAS database so that they would be included in the risk analysis. The 
chemical specific data that we used for each of these chemical 
constituents can be found in the docket for this proposed rule.
    For constituents which are not detected in leachate analysis, DRAS 
requires that the detection limit be entered along with the other data. 
In these circumstances, DRAS uses one-half the detection limit to 
calculate risk. We believe it is inappropriate to evaluate constituents 
which are not detected in any sample analyzed if an appropriate 
analytical method was used.
    Similarly, DRAS also predicts possible risks associated with 
releases of waste constituents through surface pathways (e.g., 
volatilization or wind-blown particulate from the landfill). As in the 
groundwater analyses, DRAS uses the established acceptable risk level, 
the health-based data, and standard risk assessment and exposure 
algorithms to perform this assessment.
    In most cases, because a delisted waste is no longer subject to 
hazardous waste regulation, the Agency is generally unable to predict, 
and does not presently control, how a petitioner will manage a waste 
after it is excluded. Therefore, we believe that it is inappropriate to 
consider extensive site-specific factors when applying the fate and 
transport model.
    However, as discussed earlier in this preamble, the waste that is 
being considered for delisting in this B&W NOG petition contains a 
radioactive component and, therefore, will remain subject to NRC 
jurisdiction.
    For a one-time delisting petition, we determine cumulative risk. 
Beginning with the leachate and total waste concentrations for each 
constituent in the waste (source concentrations), the waste volume and 
exposure parameters are used to estimate the upper-bound excess 
lifetime cancer risks (risk) and noncarcinogenic hazards (hazard).
    If a delisting evaluation is performed for a one-time exclusion, 
DRAS computes the cumulative carcinogenic risk by summing the 
carcinogenic risks for all waste constituents for a given exposure 
pathway and then summing the carcinogenic risks for each pathway 
analyzed in the delisting risk assessment. DRAS also computes the 
cumulative noncarcinogenic hazard by summing the Hazard Quotients for 
all waste constituents for a given exposure pathway to obtain exposure 
pathway-specific Hazard Indices (HIs), and then summing the HIs 
associated with each exposure pathway analyzed.
    For a one-time delisting, EPA Region III evaluates the cumulative 
cancer risk and cumulative hazard index of the petitioned waste. A 
cumulative cancer risk less than 1 x 10-4 and a cumulative 
hazard index less than or equal to 1 are considered to be protective of 
human health and will be considered acceptable for this type of 
delisting determination.

B. What other factors did EPA consider in its evaluation?

    We also consider the applicability of groundwater monitoring data 
during the evaluation of delisting petitions where the petitioned waste 
is currently managed or was once managed in a land-based unit (e.g., a 
landfill or surface impoundment).
    We use the results of groundwater monitoring data evaluations as a 
check on the reasonable worst case evaluations performed, in order to 
provide an additional level of confidence in our delisting decisions. 
Because groundwater monitoring data are normally descriptive of the 
impact of the petitioned waste under actual conditions, and not 
reasonable worst case assumptions, evidence of groundwater 
contamination originating from a land-based waste management unit may 
be a factor resulting in petition denial.
    Regarding the fluoride in the groundwater, B&W NOG makes the 
argument that the fluoride concentrations can be attributed to a source 
other than the FEP sludge which is the subject of this delisting 
request. As previously discussed in this preamble, the FEPs are used as 
equalization ponds for treating

[[Page 62046]]

industrial effluent and are part of B&W NOG's VPDES permitted 
wastewater treatment system that discharges to the James River.
    In support of its position that the sludge is not the source of the 
fluoride in the groundwater, B&W NOG submitted the following two 
documents regarding the chemistry of fluoride: A declaration of David 
W. Griffiths, Ph.D., regarding the use and disposition of fluorine 
containing compounds at the Mt. Athos site dated February 17, 2003, and 
a white paper on calcium fluoride solubility submitted to EPA on July 
27, 2009. Both of these documents can be found in the docket for this 
proposed rule.
    Based on the wastewater treatment chemistry, B&W NOG has 
demonstrated that the fluoride in the sludge is present in the form of 
calcium fluoride, an insoluble precipitate. In contrast, the fluoride 
in the effluent is in a dissolved form (sodium fluoride) that can 
migrate through the soil and affect the underlying groundwater. The 
fluoride content in this effluent is regulated under B&G NOG's existing 
VPDES permit. The fluoride in the groundwater has been evaluated 
through a site-specific risk assessment. The actual area of fluoride 
contamination is very limited and the conclusion of the risk assessment 
accepted by VADEQ was that the risk to human health and the environment 
was so low that no action by B&G NOG was required to address this 
contamination.

C. What conclusion did EPA reach?

    EPA has concluded that the information provided by B&W NOG provides 
a reasonable basis to grant B&W NOG's petition. We, therefore, propose 
to grant B&W NOG a one-time delisting for the 148 cubic yards of 
petitioned sludge currently residing in the FEPs. The data submitted to 
support the petition and the Agency's evaluation show that the 
constituents in the FEP sludge are below health-based levels used by 
the Agency for delisting decision-making, and that the sludge does not 
exhibit any of the characteristics of a hazardous waste as described in 
40 CFR part 261 subpart C.
    For this delisting determination, we used information gathered to 
identify plausible exposure routes (i.e., groundwater, surface water, 
air) for hazardous constituents present in the petitioned waste. We 
applied the DRAS described above to predict potential concentrations of 
hazardous constituents that may be released from the petitioned waste 
after disposal using both the landfill and surface impoundment modules. 
We performed a separate and more conservative evaluation of volatile 
emissions from surface impoundments using the methodology described in 
the EPA report, ``Air Emissions Models for Waste and Wastewater'' (as 
described earlier in this preamble.) We determined the potential impact 
of the disposal of B&W NOG's waste on human health and the environment.
    The estimated total cumulative risk as calculated using the DRAS 
landfill scenario is 2.5 x 10-7. The estimated total 
cumulative risk as calculated using both the DRAS surface impoundment 
scenario and the methodology in the EPA report, ``Air Emissions Models 
for Waste and Wastewater'' is 2.0 x 10-6. We conclude that 
these risks are acceptable because, for a one-time delisting, EPA 
Region III considers a cumulative cancer risk less than 1 x 
10-4 to be protective of human health.
    The estimated cumulative hazard index for this waste as calculated 
by DRAS using the landfill scenario is 4.6 x 10-2. The 
estimated cumulative hazard index for this waste as calculated using 
both the DRAS surface impoundment scenario and the methodology in the 
EPA report, ``Air Emissions Models for Waste and Wastewater'' is 1.3 x 
10-1. We likewise conclude that these risks are acceptable 
because, for a one-time delisting, EPA Region III considers a 
cumulative hazard index less than or equal to 1 to be protective of 
human health.
    We conclude that the data submitted in support of the petition show 
that the waste will not pose a threat when relieved of Subtitle C 
requirements. We, therefore, propose to grant B&W NOG's request for a 
one-time delisting for the 148 cubic yards of sludge currently residing 
in B&W NOG's FEPs.

V. Conditions for Exclusion

A. What conditions are associated with this exclusion?

    The proposed exclusion would apply only to the estimated 148 cubic 
yards of sludge currently residing in B&W NOG's FEPs.
    If B&W NOG discovers that a condition or assumption related to the 
characterization of this waste that was used in the evaluation of this 
petition is not as reported in the petition, B&W NOG will be required 
to report any information relevant to that condition or assumption in 
writing to the Regional Administrator and the Virginia Department of 
Environmental Quality within 10 calendar days of discovering that 
condition.
    The purpose of this condition is to require B&G NOG to disclose new 
or different information that may be pertinent to the delisting. This 
provision will allow us to reevaluate the exclusion based on this new 
information in order to determine if our original decision was correct. 
If we discover such information from any source, we will act on it as 
appropriate. Further action may include repealing the exclusion, 
modifying the exclusion, or other appropriate action deemed necessary 
to protect human health or the environment. EPA has the authority under 
RCRA and the Administrative Procedures Act, 5 U.S.C. 551 et seq. 
(1978), (APA), to reopen the delisting under the conditions described 
above.
    In order to adequately track wastes that have been delisted, in the 
event that a decision is made to dispose of all or of part of the 
sludge off-site, we will require that B&W NOG provide a one-time 
notification to any state regulatory agency to which or through which 
the delisted waste will be transported for disposal. B&W NOG will be 
required to provide this notification at least 60 calendar days prior 
to commencing these activities. Failure to provide such notification 
will be a violation of the delisting, and may be grounds for revocation 
of the exclusion.

B. What happens if B&W NOG fails to meet the conditions of this 
exclusion?

    If B&W NOG violates the terms and conditions established in the 
exclusion, the Agency may start procedures to withdraw the exclusion, 
and may initiate enforcement actions.

VI. How would this action affect states?

    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 (RCRA) or 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, unless it is 
adopted by the State. If the petitioned waste is managed in any State 
with delisting authorization, B&W

[[Page 62047]]

NOG must obtain delisting authorization from that State before the 
waste may be managed as nonhazardous in that State.

VII. When would the proposed exclusion be finalized?

    EPA is today making a tentative decision to grant B&W NOG's 
petition. This proposed 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 RCRA Section 3010, EPA has determined 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).

VIII. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this rule is not of general applicability 
and therefore is not a regulatory action subject to review by the 
Office of Management and Budget (OMB). This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a 
particular facility only. Because this rule is of particular 
applicability relating to a particular facility, it is not subject to 
the regulatory flexibility provisions of the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the 
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because 
this rule will affect only a particular facility, it will not 
significantly or uniquely affect small governments, as specified in 
section 203 of UMRA. Because this rule will affect only a particular 
facility, this proposed rule does not have federalism implications. It 
will not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132, ``Federalism,'' (64 
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply 
to this rule. Similarly, because this rule will affect only a 
particular facility, this proposed rule does not have tribal 
implications, as specified in Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments'' (65 FR 67249, November 9, 
2000). Thus, Executive Order 13175 does not apply to this rule. This 
rule also is not subject to Executive Order 13045, ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant as 
defined in Executive Order 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. The basis for 
this belief is that the Agency used the DRAS program, which considers 
health and safety risks to infants and children, to calculate the 
cumulative carcinogenic and noncarcinogenic risk. This rule is not 
subject to Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866. This rule does not involve technical 
standards; thus, the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. As required by section 3 of Executive Order 12988, ``Civil 
Justice Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule, 
EPA has taken the necessary steps to eliminate drafting errors and 
ambiguity, minimize potential litigation, and provide a clear legal 
standard for affected conduct. The Congressional Review Act, 5 U.S.C. 
801 et seq., as added by the Small Business Regulatory Enforcement 
Fairness Act of 1996, generally provides that before a rule may take 
effect, the agency promulgating the rule must submit a rule report 
which includes a copy of the rule to each House of the Congress and to 
the Comptroller General of the United States. Section 804 exempts from 
section 801 the following types of rules (1) rules of particular 
applicability; (2) rules relating to agency management or personnel; 
and (3) rules of agency organization, procedure, or practice that do 
not substantially affect the rights or obligations of non-agency 
parties, 5 U.S.C. 804(3). EPA is not required to submit a rule report 
regarding this action under section 801 because this is a rule of 
particular applicability. Executive Order (EO) 12898 (59 FR 7629 (Feb. 
16, 1994)) establishes Federal executive policy on environmental 
justice. Its main provision directs federal agencies, to the greatest 
extent practicable and permitted by law, to make environmental justice 
part of their mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority 
populations and low-income populations in the United States. EPA has 
determined that this proposed rule will not have disproportionately 
high and adverse human health or environmental effects on minority or 
low-income populations because it does not affect the level of 
protection provided to human health or the environment. The Agency's 
risk assessment did not identify risks from management of this material 
in a RCRA Subtitle D landfill or surface impoundment. Therefore, EPA 
does not believe that any populations in proximity of the landfills or 
surface impoundments used by this facility should be adversely affected 
by common waste management practices for this delisted waste.

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: September 24, 2010.
William C. Early,
Acting Regional Administrator, Region III.
    For the reasons set forth 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 Sec. Sec.  260.20 and 
260.22

[[Page 62048]]



                               Table 1--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
                Facility                            Address                        Waste description
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Babcock & Wilcox Nuclear Operations       Lynchburg, Virginia........  Wastewater treatment sludge from
 Group, Inc., current owner, and BWX                                    electroplating operations (Hazardous
 Technologies, Inc., predecessor in                                     Waste Number F006) generated at the Mt.
 interest to the current owner,                                         Athos facility near Lynchburg, VA and
 identified collectively hereafter as                                   currently deposited in two on-site
 ``B&W NOG''.                                                           surface impoundments designated as Final
                                                                        Effluent Ponds (FEPs) 1 and 2. This is a
                                                                        one-time exclusion for 148 cubic yards
                                                                        of sludge and is effective after (insert
                                                                        publication date of the final rule).
                                                                       (1) Reopener language
                                                                       (a) If B&W NOG discovers that any
                                                                        condition or assumption related to the
                                                                        characterization of the excluded waste
                                                                        which was used in the evaluation of the
                                                                        petition or that was predicted through
                                                                        modeling is not as reported in the
                                                                        petition, then B&W NOG must report any
                                                                        information relevant to that condition
                                                                        or assumption, in writing, to the
                                                                        Regional Administrator and the Virginia
                                                                        Department of Environmental Quality
                                                                        within 10 calendar days of discovering
                                                                        that information.
                                                                       (b) Upon receiving information described
                                                                        in paragraph (a) of this section,
                                                                        regardless of its source, the Regional
                                                                        Administrator will determine whether the
                                                                        reported condition requires further
                                                                        action. Further action may include
                                                                        repealing the exclusion, modifying the
                                                                        exclusion, or other appropriate action
                                                                        deemed necessary to protect human health
                                                                        or the environment.
                                                                       (2) Notification Requirements
                                                                       In the event that the delisted waste is
                                                                        transported off-site for disposal, B&W
                                                                        NOG must provide a one[dash]time written
                                                                        notification to any State Regulatory
                                                                        Agency to which or through which the
                                                                        delisted waste described above will be
                                                                        transported at least 60 calendar days
                                                                        prior to the commencement of such
                                                                        activities. Failure to provide such
                                                                        notification will be deemed to be a
                                                                        violation of this exclusion and may
                                                                        result in revocation of the decision and
                                                                        other enforcement action.

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2010-25319 Filed 10-6-10; 8:45 am]
BILLING CODE 6560-50-P

