TITLE 329 SOLID WASTE MANAGEMENT BOARD

FINDINGS AND DETERMINATION OF THE COMMISSIONER

PURSUANT TO IC 13-14-9-7 AND SECOND NOTICE OF COMMENT PERIOD

LSA Document #07-552

The Indiana Department of Environmental Management (IDEM) has developed draft rule language for new rules for exclusion of a hazardous waste from regulation under 329 IAC 3.1-5-2 (delisting). The purpose of this notice is to publish the commissioner's tentative recommendation for rulemaking and to seek public comment on the recommendation and the draft rule, including suggestions for specific language to be included in the rule. IDEM seeks comment on the affected citations listed and any other provisions of Title 329 that may be affected by this rulemaking.

IC 13-14-9-7 recognizes that under certain circumstances it may be appropriate to reduce the number of public comment periods routinely provided. In cases where the commissioner determines that the rulemaking policy alternatives available to IDEM are so limited that the notice of first public comment period would provide no substantial benefit, IDEM may forgo this comment period and proceed directly to the notice of second public comment period.

If the commissioner makes the determination of limited rulemaking policy alternatives required by IC 13-14-9-7, the commissioner shall prepare written findings and include them in the second notice of public comment period published in the Indiana Register. This document constitutes the commissioner's written findings pursuant to IC 13-14-9-7.

The statute provides for this shortened rulemaking process if the commissioner determines that "the rulemaking policy alternatives available to the department are so limited that the public notice and comment period under [IC 13-14-9-3] . . . would provide no substantial benefit to:

(1) the environment; or

(2) persons to be regulated or otherwise affected by the proposed rule.".

"Delisting" is the process of excluding a hazardous waste that is listed in 40 CFR 261, Subpart D, from regulation as hazardous waste if the generator can show that the waste no longer meets the criteria for which it was listed as a hazardous waste and that it will not exhibit a hazardous waste characteristic. Once delisted, the waste may be disposed of in a solid waste landfill permitted under 329 IAC 10.

This proposed delisting is a "conditional exclusion" for a waste that may exhibit future variability that excludes the waste so long as it is managed in accordance with specific conditions, such as periodic testing.

P.L.128-1997 and P.L.45-1997 required the Solid Waste Management Board to "adopt rules that provide procedures and criteria for delisting wastes as hazardous wastes." These statutes also required IDEM to "apply to the United States Environmental Protection Agency (EPA) for authority to receive petitions and delist wastes under 40 CFR 260.20 and 40 CFR 260.22.". Delisting rules were adopted at 329 IAC 3.1-5-2 and 329 IAC 3.1-5-3, effective March 19, 1998. IDEM received EPA authorization for delisting on January 4, 2001.

Under IC 13-22-2-3, generators of hazardous wastes may petition IDEM to exclude a specific hazardous waste listed in 40 CFR 261, Subpart D, that is generated at a particular facility from regulation as a hazardous waste under 329 IAC 3.1. This petition must be submitted in accordance with 329 IAC 3.1-5-2. The petition must include the information and meet the criteria required by 40 CFR 260.22 (incorporated by reference in 329 IAC 3.1-5-3).

Before petitioning for a delisting, the waste generator must sample the waste over time and analyze the waste for hazardous waste constituents listed in 40 CFR 261, Appendix VIII. This testing must be done following a sampling and analysis plan approved by IDEM. The data resulting from this testing is incorporated into the petition for delisting.

Upon receipt of a petition that meets the requirements of 329 IAC 3.1-5-2, IDEM evaluates the petition:

(1) to determine that the information provided in the petition complies with the requirements of 40 CFR 260.22;

(2) to determine that the waste will meet the criteria in 40 CFR 260.22 when delisted;

(3) to determine that exclusion of the waste from regulation under 329 IAC 3.1 will not result in increased risk to human health and the environment; and

(4) to determine that the delisted waste can be safely managed as described in the petition.

Delisting of a waste under 329 IAC 3.1-5-2 affects waste generated, managed, and disposed of in Indiana. No other state recognizes Indiana's delisting authority. A waste generated in Indiana and delisted under 329 IAC 3.1-5-2 will be considered a hazardous waste when it is transported outside of Indiana unless it has also been delisted by the EPA under 40 CFR 260.20 and 40 CFR 260.22 or by the receiving state.

On March 29, 2007, Alcoa, Inc. (Alcoa) petitioned IDEM to exclude a hazardous waste from listing in 40 CFR 261, Subpart D, incorporated by reference at 329 IAC 3.1-6-1, also known as delisting. The hazardous waste to be delisted is described in 40 CFR 261.31 as "F019: Wastewater treatment sludges from the chemical conversion coating of aluminum except from zirconium phosphating in aluminum can washing when such phosphating is an exclusive conversion coating process". The particular hazardous waste for which delisting is sought is wastewater treatment sludge from the chemical conversion coating of aluminum sheet generated at Alcoa's Warrick Operations in Newburgh, Indiana. The delisted waste would be disposed of only at a municipal solid waste landfill permitted under 329 IAC 10 or a hazardous waste disposal facility permitted under 329 IAC 3.1. The petition requested delisting of up to 4,200 cubic yards of this particular wastewater treatment sludge annually. The petition met all criteria for delisting petitions in 329 IAC 3.1-5.

The petition and all documents related to IDEM's review and analysis of the petition are available for viewing and copying in the Indiana Department of Environmental Management, Centralized File Room, Indiana Government Center-North, 100 North Senate Avenue, Room N1201, Indianapolis, Indiana.

IDEM is proposing to grant the petition submitted by Alcoa for the Warrick Operations plant to exclude a hazardous waste from regulation under the hazardous waste rules in 329 IAC 3.1. F019 wastewater treatment sludge waste is generated when aluminum components undergo a treatment process to prepare them for coating. The conversion coating process prepares and cleans metals surfaces to accept paint. The F019 waste is listed for hexavalent chromium and cyanide. The F019 waste causes wastewater treatment sludge from this plant to be a hazardous waste. IDEM evaluated all constituents in the plant's wastewater in reviewing this petition.

The petition was evaluated by the Science Services Branch of the Office of Land Quality using the current procedures and methods used by the EPA.

A risk assessment using a fate and transport model was used to predict concentrations of hazardous constituents released from the waste after disposal to evaluate the potential impacts on human health and the environment. The risk assessment set specific concentrations that the waste, as a total concentration, or extracts of the waste must meet. The risk assessment was based on a specified annual volume of waste disposed and the disposal method. However, the total concentration constituent levels found in this waste are at such low levels compared to the total concentration delisting levels that it is very unlikely the waste could contain those levels. Therefore, the total concentration delisting levels are not used to determine delisting eligibility.

The risk assessment was done using Delisting Risk Assessment Software (DRAS) developed by EPA Region 6. Version 2.0 of the DRAS software was used with amendments and updates provided by EPA Region 5.

The analytical results show that the extract concentrations determined using the Toxicity Characteristic Leaching Procedure (TCLP) (Method 1311 from SW-846) are below the levels requiring treatment under the land disposal restrictions of 40 CFR 268. The waste does not exhibit the characteristics of toxicity or reactivity. No other hazardous waste constituents were detected in the waste during testing for the petition.

IDEM is proposing conditions for granting this petition that include the following:

(1) The delisted waste must not exceed any of the delisting concentrations for constituents of concern in Table 1 of the draft rule.

(2) The maximum annual volume of waste to be delisted under this petition is 4,200 cubic yards per year.

(3) Alcoa must demonstrate on a quarterly basis that the constituents detected in the initial analysis are below the delisting levels in Table 1 of the draft rule. Alcoa must extract a representative sample of the waste using Method 1311, "Toxicity Characteristic Leaching Procedure". The extracts must be analyzed for the constituents listed in Table 1 of the draft rule using Method 6010B, "Inductively Coupled Plasma-Atomic Emission Spectrometry" or Method 6020, "Inductively Coupled Plasma-Mass Spectrometry", and Method 7470A "Mercury in Liquid Waste (Manual Cold-Vapor Technique)", found in U.S. Environmental Protection Agency Publication SW-846, "Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods," Third Edition. Detection levels of the methods used must be equal to or lower than the delisting levels. The same level of analytical quality control used in the petition must be used in the quarterly verification analysis.

(4) If waste testing shows that any constituent has exceeded the delisting level for that constituent, Alcoa must notify IDEM in writing within 10 days of first possessing or being made aware of such data and must manage the delisted waste as hazardous waste until Alcoa receives written approval from the department to resume managing the waste under this exclusion.

(5) Alcoa must submit to IDEM an annual report by February 1 of each year describing the previous year's annual test results.

(6) Alcoa must compile and summarize the records of operating conditions and analytical data and maintain those records on site for at least five years. Alcoa must make these records available for inspection. All reports must include a signed copy of the certification statement required by 40 CFR 260.22(i)(12).

(7) Alcoa must notify IDEM if the manufacturing process that generates the waste or the chemicals involved change and must manage any waste generated after the process change as a hazardous waste until Alcoa demonstrates that the waste meets all delisting levels and it has received written approval from IDEM to continue to manage the waste under this exclusion.

(8) After disposal of the waste, if at any time Alcoa has any information, including, but not limited to, extract data, that any constituent listed in Table 1 is at a level in the extracts that exceeds the delisting level for that constituent, Alcoa must report that information in writing to IDEM within 10 days of first receiving such information.

(9) The delisted waste must be disposed of in either a municipal solid waste landfill permitted under 329 IAC 10 or a hazardous waste disposal facility permitted under 329 IAC 3.1.

No element of the draft rule imposes either a restriction or a requirement on persons to whom the draft rule applies that is not imposed under federal law. This rule is authorized under IC 13-22-2-3. While this delisting imposes a number of conditions on the generator (petitioner), these conditions and the proposed delisting meet the federal standards for delisting at 40 CFR 260.20 and 40 CFR 260.22. Indiana was authorized by EPA to delist hazardous wastes on January 4, 2001 (66 FR 733). This delisting will result in streamlined hazardous waste management operations and significantly reduced costs for the petitioner.

This rulemaking will result in an annual cost savings of approximately $250,000 to Alcoa, resulting from disposal of the wastewater treatment sludge in facilities permitted under 329 IAC 10 rather than hazardous waste disposal facilities. This assessment is based on information provided by the Alcoa Warrick Operations solid and hazardous waste manager.

No workgroup is planned for the rulemaking. If you feel that a workgroup or other informal discussion on the rule is appropriate, please contact Steve Mojonnier of the Office of Land Quality, (317) 233-1655 or (800) 451-6027 (in Indiana).

IDEM established a compliance and technical assistance (CTAP) program under IC 13-28-3. The program provides assistance to small businesses and information regarding compliance with environmental regulations. In accordance with IC 13-28-3 and IC 13-28-5, there is a small business assistance program ombudsman to provide a point of contact for small businesses affected by environmental regulations. Information on the CTAP program, the monthly CTAP newsletter, and other resources available can be found at:

www.in.gov/idem/ctap

Small businesses affected by this rulemaking may contact the Small Business Regulatory Coordinator:

Christina Lowry

IDEM Compliance and Technical Assistance Program

OPPTA - MC60-04

100 North Senate Avenue

W-041

Indianapolis, IN 46204-2251

(317) 234-1191

clowry@idem.in.gov

The Small Business Assistance Program Ombudsman is:

Megan Tretter

IDEM Small Business Assistance Program Ombudsman

MC 50-01– IGCN 1301

100 North Senate Avenue

Indianapolis, IN 46204-2251

(317) 234-3386

mtretter@idem.in.gov

The commissioner of IDEM has prepared written findings and a tentative recommendation regarding rulemaking on delisting of the waste described in the petition submitted by Alcoa. These findings are prepared under IC 13-14-9-7 and are as follows:

(1) Based on the department's analysis of the petition described above, I have determined that the waste described in the petition meets the criteria in 40 CFR 260.22 for delisting when tested as in the petition. At this time, I recommend that the waste described in the petition be excluded from regulation under 329 IAC 3.1-5-2 with certain conditions as described in the draft rule attached to and incorporated in these findings. This recommendation is subject to public comment as provided below. This recommendation may be modified or reversed based on the comments received.

(2) I have determined that under the specific circumstances pertaining to this rule, the rulemaking policy alternatives are so limited that the public notice and comment period provided in the notice of first public comment period would provide no substantial benefit to the environment or to persons to be regulated or otherwise affected by the rule.

(3) The draft rule is hereby incorporated into these findings.

329 IAC 3.1-5-2(d) states that the commissioner may hold an informal public hearing to consider oral comments on the tentative recommendation for rulemaking. A person requesting a hearing must state the issues to be raised and explain why written comments would not suffice to communicate the person's views. A person who requests an informal public hearing on this petition must submit the request in writing to the address below.

This notice requests the submission of comments on both the tentative recommendation for rulemaking and the draft rule language, including suggestions for specific revisions to language to be contained in the rule. Mailed comments should be addressed to:

#07-552(SWMB)[Alcoa F019 Delisting]

Marjorie Samuel

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue MC 66-20

Indianapolis, Indiana 46204-2251

Comments may be submitted by facsimile at (317) 232-3403, between 8:15 a.m. and 4:45 p.m. Please confirm the timely receipt of faxed comments by calling the Rules, Planning and Outreach Section at (317) 233-1655 or (317) 232-7995.

Comments must be postmarked, faxed, or hand delivered by October 12, 2007.

Additional information regarding this action may be obtained from Steve Mojonnier of the Office of Land Quality, (317) 233-1655 or (800) 451-6027 (in Indiana).

SECTION 1. 329 IAC 3.1-6-8 IS ADDED TO READ AS FOLLOWS:

Affected: IC 13-22

Sec. 8. Wastewater treatment sludge, hazardous waste code F019, that is generated by Alcoa Corporation (Alcoa) at the Warrick Operations, Newburgh, Indiana is excluded from regulation under this article so long as management of the waste complies with all of the following conditions:

*Test methods referenced in this rule are found in U.S. Environmental Protection Agency Publication SW-846, "Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods", Third Edition, available from the Government Printing Office, Superintendent of Documents, P.O. Box 371954, Pittsburgh, Pennsylvania 15250-7954, (202) 783-3238.

Notice of Public Hearing

DIN: 20070912-IR-329070552FDA

Composed: May 02,2024 11:52:22AM EDT

A PDF version of this document.