

[Federal Register: July 31, 2006 (Volume 71, Number 146)]
[Rules and Regulations]               
[Page 43067-43071]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31jy06-12]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-8204-4]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to codify a longstanding 
generator-specific delisting determination for brine purification muds 
(K071) generated by Olin Corporation (Olin) at its facility in 
Charleston, Tennessee. This rule will amend the Code of Federal 
Regulations to reflect the delisting, which was granted by EPA in 
December 1981 and by the Tennessee Department of Environment and 
Conservation in June 1983 after full notice and comment. The rule will 
not impose any new requirements on Olin or any other member of the 
regulated community.

DATES: This rule is effective on September 29, 2006 without further 
notice unless we receive adverse comment by August 30, 2006. If we 
receive adverse comments, we will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Submit comments, identified by docket number EPA-R04-RCRA-
2006-0478, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. Follow 

the on-line instructions.
     E-mail: lippert.kristin@epa.gov.
     Mail or deliver: Kristin Lippert, North Enforcement and 
Compliance Section, Mail Code 4WD-RCRA, RCRA Enforcement and Compliance 
Branch, U.S. Environmental Protection Agency, Region 4, Sam Nunn 
Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303.
    Instructions: All comments 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 Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Information that you 
consider CBI or otherwise protected should be clearly identified as 
such and should not be submitted through http://www.regulations.gov or e-mail. 

http://www.regulations.gov is an ``anonymous access'' system, and EPA will not 

know your identity or contact information unless you provide it in the 
body of your comment. If you send e-mail directly to EPA, your e-mail 
address will be automatically captured and included as part of the 
public comment. 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.
    Docket: The index to the docket for this action is available 
electronically at

[[Page 43068]]

http://www.regulations.gov and in hard copy at the EPA Library, U.S. 

Environmental Protection Agency, Region 4, Sam Nunn Atlanta Federal 
Center, 61 Forsyth Street SW., Atlanta, Georgia 30303. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available in either location 
(e.g., CBI).

FOR FURTHER INFORMATION CONTACT: For general and technical information 
about this Direct Final Rule, contact Kristin Lippert, North 
Enforcement and Compliance Section, Mail Code 4WD-RCRA, RCRA 
Enforcement and Compliance Branch, U.S. Environmental Protection 
Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street 
SW., Atlanta, Georgia 30303 or call (404) 562-8605.

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

I. Legal Background
II. Olin's Petition to Delist its Waste
III. Evaluation of Olin's Petition
IV. History of this Rulemaking
V. Final Action and Effective Date
VI. Regulatory Impact
VII. Regulatory Flexibility Act
VIII. Executive Order 12875
IX. Executive Order 12898
X. Executive Order 13211
XI. Paperwork Reduction Act
XII. Unfunded Mandates Reform Act
XIII. Executive Order 13045
XIV. Executive Order 13175
XV. National Technology Transfer and Advancement Act
XVI. Executive Order 13132 Federalism
XVII. Submission to Congress and General Accounting Office

I. Legal Background

    On January 16, 1981, as part of its final and interim final 
regulations implementing section 3001 of the Resource Conservation and 
Recovery Act (RCRA), EPA published an amended list of hazardous wastes 
from non-specific and specific sources. This list has been amended 
several times and is published in Title 40 Code of Federal Regulations 
(40 CFR) 261.31 and 261.32. These wastes are listed as hazardous 
because: (1) They exhibit one or more of the characteristics of 
hazardous waste identified in subpart C of 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).
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
that is described in these regulations generally is hazardous, a 
specific waste from an individual facility meeting the listing 
description may not be. For this reason, 40 CFR 260.20 and 260.22 
provide an exclusion procedure, called delisting, which allows persons 
to demonstrate that a specific waste generated at a particular facility 
should not be regulated as a hazardous waste.

II. Olin's Petition to Delist its Waste

    On July 13, 1981, Olin petitioned EPA to amend 40 CFR part 261 to 
exclude sodium chloride purification muds generated at Olin's facility 
in Charleston, Tennessee. The muds meet the listing description for EPA 
Hazardous Waste No. K071--brine purification muds from the mercury cell 
process in chlorine production, where separately prepurified brine is 
not used.
    Olin's petition included a description of its production and 
treatment processes. Olin's Charleston facility manufactures chlorine 
using a mercury cell chlor-alkali process. The chlor-alkali production 
process at Charleston involves the preparation of a strong brine from 
rock salt, which then circulates through mercury where part of the 
dissolved sodium chloride is separated by electrolysis into chlorine 
and sodium. The chlorine is collected and processed into liquid 
chlorine and the sodium amalgamates with the mercury of the cell and is 
separated and decomposed to form sodium hydroxide. The weak brine 
leaves the cells, is dechlorinated, resaturated, and purified. The 
purification (settling and filtration) of the resaturated brine 
produces brine muds which contain low levels of mercury carried over 
from the cells. The muds are dewatered using gravity. Liquid brine and 
dissolved mercury drain out and are returned to the brine system.
    Olin's petition also included a description of total constituent 
and EP toxicity analyses of the muds for mercury, the constituent of 
concern for K071, and provided a plan for continuous testing of the 
muds prior to disposal.

III. Evaluation of Olin's Petition

    Based on the information submitted by Olin, EPA granted a 
conditional temporary exclusion for Olin's sodium chloride purification 
muds on December 16, 1981 (46 FR 61272, December 16, 1981). The 
exclusion is conditioned on Olin's testing of samples from each batch 
of mud for mercury prior to disposal. Batches with a mercury 
concentration of 0.05 parts per million (ppm) or less are considered 
nonhazardous and are disposed of in Olin's on-site solid waste 
landfill. Batches that exceed 0.05 ppm of mercury are considered 
hazardous and are disposed of accordingly. EPA requested public 
comments on the delisting of Olin's brine purification muds. No adverse 
comments were received by the Agency.
    At EPA's direction on September 28, 1981, Olin also submitted a 
delisting petition to the Tennessee Division of Solid Waste Management 
because, at that time, Tennessee had Phase 1 Interim Authorization. On 
February 17, 1982, Tennessee published notice of its tentative decision 
to grant Olin's delisting petition and requested public comments. No 
public comments were received by Tennessee. On June 28, 1983, Tennessee 
granted final approval of Olin's petition. Under the terms of the final 
approval, Olin must analyze samples from every batch of mud before 
disposal and submit the results to Tennessee on a quarterly basis. If a 
batch exceeds a mercury concentration of 0.05 ppm, Olin must handle the 
batch as a hazardous waste.
    In 1984, Congress passed the Hazardous and Solid Waste Amendments 
(``HSWA'') to RCRA. HSWA included additional criteria for evaluating 
proposed exclusions of certain listed waste. In anticipation of HSWA, 
EPA and Tennessee asked Olin to supply additional information that 
would allow evaluation of Olin's delisting under HSWA's proposed 
criteria. Olin complied, supplying detailed information supporting the 
delisting determination previously made by the agencies. Subsequently, 
both agencies confirmed that final exclusions, such as Olin's 
delisting, which were granted before November 8, 1984 were not affected 
by HSWA.

IV. History of This Rulemaking

    In 2004, Olin contacted EPA seeking confirmation that use of 
potassium chloride as a raw material in the mercury cell process would 
not affect application of Olin's delisting to brine purification muds 
generated in that process, provided the muds meet the criteria of the 
delisting. Olin determined that use of potassium chloride as a raw 
material in the production process will not alter the composition or 
characteristics of the resulting brine purification muds with respect 
to mercury, the constituent of concern, nor will use of potassium 
chloride introduce any other hazardous constituents into the muds. EPA 
agreed with Olin's determination and concluded that Olin did not need a 
modification to its current delisting in order to use the delisting to 
manage muds generated in the potassium chloride process.

[[Page 43069]]

    In the course of EPA's review of Olin's determination regarding use 
of potassium chloride, the Agency noted that Olin's delisting is not 
listed in the Code of Federal Regulations. EPA is issuing this direct 
final rule to correct this oversight.

V. Final Action and Effective Date

    By this rule, EPA is taking direct final action to incorporate 
Olin's longstanding delisting into the Code of Federal Regulations. EPA 
is publishing this as a direct final rule because the Agency views this 
as a non-controversial amendment to the Code of Federal Regulations and 
anticipates no adverse comments. Interested parties had two prior 
opportunities to comment on Olin's delisting petition, first at the 
federal level and later at the state level, and no adverse comments 
were submitted. EPA sees no reason to provide a third comment period.
    This rule will be effective upon publication in the Federal 
Register. Section 3010(b) of RCRA allows rules to become effective 
immediately when the regulated community does not need time to come 
into compliance. That is the case here because this rule will codify 
Olin's longstanding delisting for brine purification muds by amending 
the Code of Federal Regulations to reflect the delisting. The rule does 
not impose any new requirements on Olin or any other member of the 
regulated community. This reason also provides a basis for making this 
rule effective immediately, upon publication, under the Administrative 
Procedure Act pursuant to 5 U.S.C. 553(d).

VI. Regulatory Impact

    Because EPA is issuing today's rule under the Federal RCRA 
delisting program, only states subject to federal RCRA delisting 
provisions are affected. This exclusion may not be effective in states 
that have received EPA's authorization to make their own delisting 
decisions.
    Under section 3009 of RCRA, EPA allows states to impose their own 
non-RCRA regulatory requirements that are more stringent than EPA's 
requirements. These more stringent requirements may include a provision 
that prohibits a federally issued exclusion from taking effect in the 
state. EPA urges petitioners to contact the state regulatory authority 
to establish the status of their wastes under state law.
    EPA has also authorized some states to administer a delisting 
program in place of the federal program, that is, to make state 
delisting decisions. Therefore, this exclusion does not apply in those 
authorized states. If Olin manages brine purification muds in any state 
with delisting authorization, Olin must obtain delisting authorization 
from the state before Olin can manage the brine purification muds as 
nonhazardous in that state.
    Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA 
must conduct an ``assessment of the potential costs and benefits'' for 
all ``significant'' regulatory actions. Today's rule is not significant 
because its effect is to reduce the overall costs and economic impact 
of EPA's hazardous waste management regulations. This reduction is 
achieved by excluding waste generated at a specific facility from EPA's 
lists of hazardous wastes, thus enabling a facility to manage its waste 
as nonhazardous. Because there is no additional impact from today's 
rule, the rule is not a significant regulation, and no cost/benefit 
assessment is required. The Office of Management and Budget (OMB) has 
also exempted this rule from the requirement for OMB review under 
Section (6) of Executive Order 12866.

VII. Regulatory Flexibility Act

    Under 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 or 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 (that is, small businesses, small 
organizations, and small governmental jurisdictions). No regulatory 
flexibility analysis is required, however, if the Administrator or 
delegated representative certifies that the rule will not have a 
significant economic impact on a substantial number of small entities.
    Today's rule will not have any impact on small entities since its 
effect is to reduce the overall costs of EPA's hazardous waste 
regulations on one facility. Accordingly, EPA hereby certifies that 
this rule will not have a significant economic impact on a substantial 
number of small entities. This rule, therefore, does not require a 
regulatory flexibility analysis.

VIII. Executive Order 12875

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a state, local, 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of state, local, and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.'' 
Today's rule does not create a mandate on state, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of Executive 
Order 12875 do not apply to this rule.

IX. Executive Order 12898

    Executive Order 12898, ``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Population'' (February 
11, 1994), is designed to address the environmental and human health 
conditions of minority and low-income populations. EPA is committed to 
addressing environmental justice concerns and has assumed a leadership 
role in environmental justice initiatives to enhance environmental 
quality for all citizens of the United States. The Agency's goals are 
to ensure that no segment of the population, regardless of race, color, 
national origin, income, or net worth bears disproportionately high and 
adverse human health and environmental impacts as a result of EPA's 
policies, programs, and activities. In response to Executive Order 
12898, and to concerns voiced by many groups outside the Agency, EPA's 
Office of Solid Waste and Emergency Response (OSWER) formed an 
Environmental Justice Task Force to analyze the array of environmental 
justice issues specific to waste programs and to develop an overall 
strategy to identify and address these issues (OSWER Directive No. 
9200.3-17). Today's final rule applies to a single waste at a single 
facility. We have no data indicating that today's final rule would 
result in disproportionately negative impacts on minority or low income 
communities.

X. Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That Affect 
Energy Supply, Distribution, or Use'' (May 18, 2001), addresses the 
need for regulatory actions to more fully consider the potential energy 
impacts of the proposed rule and resulting actions.

[[Page 43070]]

Under the Order, agencies are required to prepare a Statement of Energy 
Effects when a regulatory action may have significant adverse effects 
on energy supply, distribution, or use, including impacts on price and 
foreign supplies. Additionally, the requirements obligate agencies to 
consider reasonable alternatives to regulatory actions with adverse 
effects and the impacts the alternatives might have upon energy supply, 
distribution, or use. Today's final rule applies to a single waste at a 
single facility and is not likely to have any significant adverse 
impact on factors affecting energy supply. EPA believes that 66 FR 
28355 Executive Order 13211 is not relevant to this action.

XI. Paperwork Reduction Act

    This final 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 there are no paperwork requirements as part of 
this final rule, EPA is not required to prepare an Information 
Collection Request (ICR) in support of today's action.

XII. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(UMRA), Public Law 104-4, which was signed into law on March 22, 1995, 
EPA generally must prepare a written statement for rules with Federal 
mandates that may result in estimated costs to State, local, and tribal 
governments in the aggregate, or to the private sector, of $100 million 
or more in any one year.
    When such a statement is required for EPA rules, under section 205 
of the UMRA EPA must identify and consider alternatives, including the 
least costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. EPA must select that alternative, 
unless the Administrator explains in the final rule why it was not 
selected or it is inconsistent with law.
    Before EPA establishes regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, EPA must develop under section 203 of the UMRA a small 
government agency plan. The plan must provide for notifying potentially 
affected small governments, giving them meaningful and timely input in 
the development of EPA's regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising them 
on compliance with the regulatory requirements.
    The UMRA generally defines a Federal mandate for regulatory 
purposes as one that imposes an enforceable duty upon state, local, or 
tribal governments or the private sector.
    EPA finds that today's rule is deregulatory in nature and does not 
impose any enforceable duty on any State, local, or tribal governments 
or the private sector. Therefore, no statement is required under 
section 205 of the UMRA. In addition, this rule does not establish any 
regulatory requirements for small governments and so does not require a 
small government agency plan under UMRA section 203.

XIII. Executive Order 13045

    Executive Order 13045 (62 FR 19885, April 23, 1997), entitled 
``Protection of Children from Environmental Health Risks and Safety 
Risks,'' applies to any rule that EPA determines: (1) Is economically 
significant as defined under Executive Order 12866; and (2) the 
environmental health or safety risk addressed by the rule has a 
disproportionate effect on children. If the regulatory action meets 
both criteria, EPA must evaluate the environmental health or safety 
effects of the planned rule on children, and explain why the planned 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives considered by EPA. Today's rule is not subject to 
Executive Order 13045 because the rule is not economically significant 
as defined under Executive Order 12866.

XIV. Executive Order 13175

    Under Executive Order 13175 (65 FR 67249, November 6, 2000), EPA 
may not issue a regulation that has tribal implications, that imposes 
substantial direct compliance costs on Indian tribal governments, and 
that is not required by statute, unless funds necessary to pay the 
direct costs incurred by the Indian tribal government or the tribe in 
complying with the regulation are provided by the Federal government or 
EPA takes certain steps prior to the formal promulgation of the 
regulation. Those steps include: (1) Consulting with tribal officials 
early in the process of developing the proposed regulation; (2) 
providing to the Director of OMB, in a separately identified section of 
the regulation's preamble, a description of the extent of EPA's prior 
consultation with tribal officials, a summary of the nature of their 
concerns and EPA's position supporting the need to issue the 
regulation, and a statement of the extent to which the concerns of 
tribal officials have been met; and (3) making available to the 
Director of OMB any written communications submitted to EPA by tribal 
officials.
    Today's rule does not have tribal implications because it will not 
have a substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Accordingly, the requirements of Executive Order 13175 do not apply to 
this rule.

XV. National Technology Transfer and Advancement Act

    Under section 12(d) of the National Technology Transfer and 
Advancement Act of 1995, 15 U.S.C. 272 note, EPA is directed to use 
voluntary consensus standards in its regulatory activities unless to do 
so would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, business practices) 
developed or adopted by voluntary consensus standard bodies. Where 
available and potentially applicable voluntary consensus standards are 
not used by EPA, the Act requires that EPA provide Congress, through 
OMB, with an explanation of the reasons for not using such standards.
    Today's rule does not establish any new technical standards and, 
therefore, EPA is not required to consider the use of voluntary 
consensus standards in developing this rule.

XVI. Executive Order 13132 Federalism

    Executive Order 13132 (64 FR 43255, August 10, 1999), entitled 
``Federalism,'' requires EPA to develop an accountable process to 
ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications.'' ``Policies that have federalism implications'' are 
defined in the Executive Order to include regulations that 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.''
    Under section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with

[[Page 43071]]

State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless EPA consults 
with State and local officials early in the process of developing the 
proposed regulation.
    Today's rule does not have federalism implications. It does not 
have a substantial direct effect on 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, because the rule only affects one 
facility.

XVII. Submission to Congress and Government Accountability Office

    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 Congress and to the Comptroller General of the United 
States.
    Under section 804 of the Congressional Review Act, rules of 
particular applicability are exempted from the requirements of section 
801. See 5 U.S.C. 804(3). EPA is not required to submit a rule report 
regarding today's action under section 801 because this is a rule of 
particular applicability. This rule is effective on September 29, 2006.

List of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, and Reporting 
and recordkeeping requirements.

    Authority: Section 3001(f) RCRA, 42 U.S.C. 6921(f).

    Dated: July 18, 2006.
Beverly H. Banister,
Acting Director, Waste Management Division, Region 4.

0
For the reasons set out in the preamble, 40 CFR part 261 is amended as 
follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
1. The authority citation for part 261 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

0
2. In Table 2 of Appendix IX of Part 261, the following waste is added 
in alphabetical order by facility to read as follows:

Appendix IX to Part 261--Wastes Excluded Under Sec. Sec.  260.20 and 
260.22

* * * * *

                                 Table 2.--Wastes Excluded From Specific Sources
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                Facility                            Address                        Waste description
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                                                  * * * * * * *
Olin Corporation........................  Charleston, TN.............  Sodium chloride purification muds and
                                                                        potassium chloride purification muds
                                                                        (both classified as EPA Hazardous Waste
                                                                        No. K071) that have been batch tested
                                                                        using EPA's Toxicity Characteristic
                                                                        Leaching Procedure and have been found
                                                                        to contain less than 0.05 ppm mercury.
                                                                        Purification muds that have been found
                                                                        to contain less than 0.05 ppm mercury
                                                                        will be disposed in Olin's on-site non-
                                                                        hazardous waste landfill or another
                                                                        Subtitle D landfill. Purification muds
                                                                        that exceed this level will be
                                                                        considered a hazardous waste.

                                                  * * * * * * *
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[FR Doc. 06-6587 Filed 7-28-06; 8:45 am]

BILLING CODE 6560-50-P
