PROPOSED RULEMAKING
ENVIRONMENTAL
QUALITY BOARD
[25 PA. CODE CH. 261a]
Hazardous Waste Management System; Proposed Exclusion for Identification and Listing Hazardous Waste
[34 Pa.B. 6421] The Environmental Quality Board (Board) proposes to amend Chapter 261a (relating to identification and listing of hazardous waste). The proposed rulemaking would grant a delisting to MAX Environmental Technologies, Inc. (MAX) to exclude treated Electric Arc Furnace Dust (EAFD) treated at the hazardous waste treatment facility operated by MAX in Yukon, PA, from the lists of hazardous wastes.
This order was adopted by the Board at its meeting of October 19, 2004.
A. Effective Date
The proposed rulemaking will go into effect upon final-form publication in the Pennsylvania Bulletin.
B. Contact Persons
For further information contact D. Richard Shipman, Chief, Division of Hazardous Waste Management, P. O. Box 8471, Rachel Carson State Office Building, Harrisburg, PA 17105-8472, (717) 787-6239; or Kurt Klapkowski, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposed rulemaking is available on the Department of Environmental Protection's (Department) website: www.dep.state.pa.us.
C. Statutory Authority
The proposed rulemaking is being made under the authority of sections 105, 402 and 501 of the Solid Waste Management Act (SWMA) (35 P. S. §§ 6018.105, 6018.402 and 6018.501) and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20). Under sections 105, 402 and 501 of the SWMA, the Board has the power and duty to adopt rules and regulations concerning the storage, treatment, disposal and transportation of hazardous waste that are necessary to protect the public's health, safety welfare and property, and the air, water and other natural resources of this Commonwealth. Section 1920-A of The Administrative Code of 1929 grants the Board the authority to promulgate rules and regulations that are necessary for the proper work of the Department.
D. Background and Purpose
A delisting petition is a request to exclude waste from the list of hazardous wastes under the Resource Conservation and Recovery Act of 1976 (RCRA) (42 U.S.C.A. §§ 6901--6986) and SWMA regulations. Under 40 CFR 260.20 and 260.22 (relating to general; and petitions to amend part 261 to exclude a waste produced at a particular facility), which are incorporated by reference in § 260a.1 (relating to incorporated by reference; purpose, scope and applicability) and modified by § 260a.20 (relating to rulemaking petitions) a person may petition the United States Environmental Protection Agency (EPA) or a state administering an EPA-approved hazardous waste management program to remove waste or the residuals resulting from effective treatment of a waste from a particular generating facility from hazardous waste control by excluding the waste from the lists of hazardous wastes in 40 CFR 261.31 and 261.32 (relating to hazardous wastes from non-specific sources; and hazardous wastes from specific sources). Specifically, 40 CFR 260.20 allows a person to petition to modify or revoke any provision of 40 CFR Parts 260--266, 268 and 273. Section 260.22 of 40 CFR provides a person the opportunity to petition to exclude a waste on a ''generator specific'' basis from the hazardous waste lists. Under the Commonwealth's hazardous waste regulations in § 260a.20 (relating to rulemaking petitions), these petitions are to be submitted to the Board in accordance with the procedures established in Chapter 23 (relating to Environmental Quality Board policy for processing petitions--statement of policy) instead of the procedures in 40 CFR 260.20(b)--(e).
Effective November 27, 2000, the Department received approval from the EPA, under the RCRA, to administer the Commonwealth's hazardous waste management program instead of RCRA. As part of that program approval and delegation, the Department and the Board are authorized to review and approve petitions for delisting of hazardous waste.
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 EPA listed the waste in 40 CFR 261.11 (relating to criteria for listing hazardous waste) and the background document for the waste. In addition, a petitioner must demonstrate that the waste does not exhibit any of the hazardous waste characteristics (that is, ignitability, reactivity, corrosivity and toxicity) and must present sufficient information for the agency to decide whether factors other than those for which the waste was originally listed warrant retaining it as a hazardous waste.
On November 3, 2003, MAX submitted a delisting petition under § 260a.20 and 40 CFR 260.20 and 260.22 (which are incorporated by reference in the hazardous waste regulations). The petition seeks to exclude from the lists of hazardous waste in 40 CFR 261.32 the residues resulting from effective treatment EAFD conducted at the MAX Yukon facility. EAFD is listed as a hazardous waste in 40 CFR Part 261 (relating to identification and listing of hazardous waste) and bears waste code K061. EAFD/K061 is defined in 40 CFR 261.32 in the iron and steel industry group as ''emission control dust/sludge from the primary production of steel in electric arc furnaces.''
The petition submitted by MAX provides: (1) descriptions and schematic diagrams of the proposed EAFD treatment system; (2) detailed chemical and physical analyses of the residuals resulting from treatment of samples of EAFD at MAX's Yukon facility; and (3) the results of modeling to evaluate the risk posed to human health and the environment if the proposed delisted material was to be placed in a Subtitle D residual waste landfill. MAX conducted the modeling using the EPA's Delisting Risk Assessment System (DRAS) modeling software and included the assumption that the liner system of the Subtitle D landfill failed to contain the material.
The Department has carefully and independently reviewed the information contained in the petition submitted by MAX. Review of this petition included consideration of the original listing criteria, as well as the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA), as reflected in section 222 of the HSWA (42 U.S.C.A. § 6921(f)) and 40 CFR 260.22(d)(2)--(4).
The Department believes that this information demonstrates that the residues resulting from treatment of EAFD meeting the acceptance criteria identified in the petition and which are treated at the MAX Yukon facility in accordance with the treatment protocols described in the petition, satisfy the delisting criteria in 40 CFR 260.22. The data reviewed by the Department shows that residues resulting from treatment of EAFD at the MAX Yukon facility no longer meet the criteria for which it was originally listed as hazardous waste K061. The data further demonstrate that the treated EAFD residuals do not possess hazard characteristics of ignitability, corrosivity, reactivity or toxicity as defined by the RCRA. Finally, the data submitted in the petition, coupled with modeling using the EPA's DRAS model, show that treated EAFD residuals do not pose a threat to human health or the environment when disposed of in a RCRA Subtitle D/Pennsylvania Class I residual waste landfill.
Accordingly, the proposed rulemaking would provide for a conditional delisting of the EAFD that has been treated at the MAX Yukon facility. Under the conditions of the proposed delisting, MAX must dispose of the treated EAFD residuals in a RCRA Subtitle D/Pennsylvania Class I residual waste landfill which has groundwater monitoring and which is permitted to manage residual waste. The proposed exclusion would be valid for a maximum annual rate of 300,000 cubic yards per year. Any amount exceeding this volume would not be delisted under this proposed exclusion. The conditional exclusion will require that MAX maintain operational controls and protocols to assure that the treated waste continuously meets the applicable treatment standards.
In January and March 2004, the Department briefed the Solid Waste Advisory Committee (SWAC) on the hazardous waste delisting petition submitted by MAX. On September 16, 2004, the Department presented the draft proposed rulemaking to the SWAC for their input. The SWAC recommended that the draft regulations be forwarded to the Board for consideration as a proposed rulemaking.
E. Summary of Regulatory Requirements
Chapter 261a contains the provisions for the identification and listing of hazardous waste. Section 261a.32 (relating to hazardous wastes from specific sources) is being added to refer to a new Appendix IXa (relating to wastes excluded under 25 Pa. Code § 260a.20 and 40 CFR 260.20 and 260.22). New Appendix IXa contains Table 2a (relating to wastes excluded from specific sources), providing a conditional delisting of the treated EAFD residuals produced through the treatment of EAFD wastes at the MAX Yukon facility. This numbering scheme is being used to parallel the Federal regulations for clarity and consistency with the incorporation by reference of the Commonwealth's hazardous waste regulations.
The delisting levels in Appendix IXa were established by using health-based values calculated by the DRAS. The treated waste must meet the Land Disposal Restriction (LDR), as defined in 40 CFR Part 268 (relating to land disposal restrictions), before the waste can be placed in a landfill. As a result, the LDR treatment standards were substituted as the delisting levels for specific constituents where they were more stringent than the health-based DRAS levels. The delisting levels for antimony, arsenic, beryllium, selenium, thallium and vanadium were calculated by the DRAS, whereas the levels for barium, cadmium, chromium, lead, mercury, nickel, silver and zinc are LDR treatment standards.
Because MAX's petition was based on bench scale treatability studies and not a full-scale treatment process, the Department will require verification data submission for each batch that is initially treated. The data submittal frequency may be reduced upon demonstration that a full-scale treatment process is effective.
F. Benefits, Costs and Compliance
Benefits
The proposed rulemaking will provide for treatment and disposition of EAFD, providing services to the steel making operations that produce EAFD. The steel industry in this Commonwealth and across the United States is changing to remain competitive, and one of the major changes has been the increased use of the electric arc furnaces and associated air pollution control equipment to capture EAFD generated in the steel-making process. One important feature of the electric arc furnaces is the recycling of a significant percentage of scrap steel. This method produces steel at reduced costs and provides greater environmental protection than other steel making processes. In the last decade, the use of electric arc furnaces has increased in the United States to become the major method of steel production. As a result, EAFD is now the largest single hazardous waste produced in the United States. This is not a sign of environmental detriment, but rather the result of efforts across the industry to capture and sequester the metallic compound by-products resulting from steel making through more efficient pollution control devices. New electric arc furnaces are expected to be built in this Commonwealth. The proposed delisting of the residuals resulting from effective treatment of EAFD will assist steel-making operations by providing a cost-effective alternative for management of their wastes--converting it from a hazardous waste to a nonhazardous residual waste that can be managed in an environmentally responsible manner in permitted residual waste facilities.
Compliance Cost
MAX will be required to comply with the conditions set forth in the delisting regulation, including testing and recordkeeping requirements. However, the delisting of the residuals resulting from treatment of EAFD should result in an overall reduced waste management cost to the steel-making industry that would utilize the treatment services being offered by MAX.
Compliance Assistance Plan
The proposed rulemaking should not require any educational, technical or compliance assistance efforts. The Department has and will continue to provide manuals, instructions, forms and website information consistent with the proposed rulemaking. In the event that assistance is required, the Department's central office will provide it.
Paperwork Requirements
The proposed rulemaking creates some new paperwork requirements to be satisfied by MAX to demonstrate ongoing compliance with the conditions of the delisting regulation. The paperwork requirements are consistent with the protocols suggested by MAX as part of its delisting petition.
G. Pollution Prevention
For this proposed rulemaking, the Department would require no additional pollution prevention efforts. The Department already provides pollution prevention educational material as part of its hazardous waste program.
H. Sunset Review
These regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on November 22, 2004, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Environmental Resources and Energy Committees. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of comments, recommendations or objections raised.
J. Public Comments
Written Comments--Interested persons are invited to submit comments, suggestions or objections regarding the proposed rulemaking to the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477 (express mail: Rachel Carson State Office Building, 15th Floor, 400 Market Street, Harrisburg, PA 17101-2301). Comments submitted by facsimile will not be accepted. Comments, suggestions or objections must be received by the Board by January 5, 2005. Interested persons may also submit a summary of their comments to the Board. The summary may not exceed one page in length and must also be received by January 5, 2005. The one-page summary will be provided to each member of the Board in the agenda packet distributed prior to the meeting at which the final-form rulemaking will be considered.
Electronic Comments--Comments may be submitted by e-mail to the Board at RegComments@state.pa.us and must also be received by the Board by January 5, 2005. A subject heading of the proposed rulemaking and a return name and address must be included in each transmission. If an acknowledgement of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt.
KATHLEEN A. MCGINTY,
ChairpersonFiscal Note: 7-393. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart D. ENVIRONMENTAL HEALTH AND SAFETY
ARTICLE VII. HAZARDOUS WASTE MANAGEMENT
CHAPTER 261a. IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
Subchapter D. LISTS OF HAZARDOUS WASTES (Editor's Note: The following section and appendix are new. They have been printed in regular type to enhance readability.)
§ 261a.32. Hazardous wastes from specific sources.
In addition to the requirements for lists of hazardous wastes incorporated by reference in 40 CFR 261.32 (relating to hazardous waste from specific sources), the solid wastes listed in Appendix IXa (relating to wastes excluded under 25 Pa. Code § 260a.20 and 40 CFR 260.20 and 260.22) are excluded under §§ 260a.1 and 260a.20 (relating to incorporation by reference, purpose, scope and applicability; and rulemaking petitions).
APPENDIX IXa. WASTES EXCLUDED UNDER 25 Pa. Code § 260a.20 AND 40 CFR 260.20 AND 260.22
Table 2a. Wastes Excluded from Specific Sources
Facility
Address
Waste Description
Max Environmental
Technologies, Inc.233 Max Lane
Yukon, PA 15698Electric arc furnace dust (EAFD) that has been treated on site by MAX Environmental Technologies, Inc. (MAX) at a maximum annual rate of 300,000 cubic yards per year and disposed of in a Permitted Resource Conservation and Recovery Act Subtitle D/ Pennsylvania Class 1 residual waste landfill that has groundwater monitoring. (1) Delisting Levels: (i) The constituent concentrations measured in either of the extracts specified in Paragraph (2) may not exceed the following levels (mg/L): Antimony-0.206; Arsenic-0.0094; Barium-21; Beryllium-0.416; Cadmium-0.11; Chromium-0.60; Lead-0.75; Mercury-0.025; Nickel-11.0; Selenium-0.58; Silver-0.14; Thallium-0.088; Vanadium-21.1; Zinc-4.3. (ii) Total mercury may not exceed 1 mg/kg. (2) Verification Testing: (i) On a batch basis, MAX must analyze a representative sample of the waste using the following: (A) the Toxicity Characteristic Leaching Procedure (TCLP), test Method 1311 in ''Test Methods for Evaluating Solid Waste. Physical/Chemical Methods.'' EPA publication SW-846, as incorporated by reference in 40 CFR 260.11. (B) the TCLP as referenced above with an extraction fluid of pH 12 +0.05 standard units. (C) SW-846 Method 7470 for mercury. (ii) The constituent concentrations measured must be less than the delisting levels established in Paragraph (1). (3) Changes in Operating Conditions: (i) If any of the approved EAFD generators significantly changes the manufacturing process or chemicals used in the manufacturing process or MAX significantly changes the treatment process or the type of chemicals used in the treatment process, MAX must notify the Department of the changes in writing. (ii) MAX must handle wastes generated after the process change as hazardous until MAX has demonstrated that the wastes continue to meet the delisting levels set forth in paragraph (1) and that no new hazardous constituents listed in Appendix VIII of Part 261 have been introduced and MAX has received written approval from the Department. (4) Data Submittals: (i) MAX must submit the data obtained through routine batch verification testing, as required by other conditions of this rule or conditions of the permit, to the Pennsylvania Department of Environmental Protection Southwest Region, 400 Waterfront Drive, Pittsburgh, Pennsylvania 15222. (ii) The data from the initial full scale batch treatments following permit modification, and construction of the treatment unit shall be submitted to the Department as it becomes available and prior to disposal of those batches. (iii) The data submission frequency may be modified by the Department upon demonstration that the treatment method is effective. (iv) All data must be accompanied by a signed copy of the certification statement in 40 CFR 260.22(i)(12). (v) MAX must compile, summarize, and maintain on site for a minimum of five years records of operating conditions and analytical data. MAX must make these records available for inspection. (5) Reopener Language: (i) If, at any time after disposal of the delisted waste, MAX possesses or is otherwise made aware of any data for any of the approved disposal facilities (including but not limited to leachate data or groundwater monitoring data) relevant to the delisted waste indicating that any constituent identified in paragraph (1) is at a level in the leachate higher than the Toxicity Characteristic (40 CFR 261.24), or is at a level in the groundwater higher than the specific facility action levels, then MAX or the disposal facility must report such data, in writing, to the Regional Director of the Pennsylvania Department of Environmental Protection Southwest Region within 10 days of first possessing or being made aware of that data. (ii) Based on the information described in subparagraph (i) and any other information received from any source, the Regional Director will make a preliminary determination as to whether the reported information requires Department action to protect human health or the environment. Further action may include suspending or revoking the exclusion or other appropriate response necessary to protect human health and the environment. (iii) If the Regional Director determines that the reported information does require Department action, the Regional Director will notify MAX in writing of the actions the Regional Director believes are necessary to protect human health and the environment. The notice shall include a statement of the proposed action and a statement providing MAX and/or the approved disposal facility with an opportunity to present information as to why the proposed Department action is not necessary or to suggest an alternative action. MAX and/or the approved disposal facility shall have 30 days from the date of the Regional Director's notice to present the information. (iv) If after 30 days MAX and/or the approved disposal facility presents no further information, the Regional Director will issue a final written determination describing the Department actions that are necessary to protect human health or the environment. Any required action described in the Regional Director's determination shall become effective immediately, unless the Regional Director provides otherwise.
[Pa.B. Doc. No. 04-2145. Filed for public inspection December 3, 2004, 9:00 a.m.]
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