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Rulemaking Name: Pacific Cast Technologies, Inc. Delisting 2019 (formerly ATI Delisting 2019)

Document Name: EQC Staff Report

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All documents must be reviewed and approved by the Program Manager, Communications, and either the Agency Rules Coordinator or the Air Quality Rules Coordinator.

The Notice of Rulemaking and EQC Staff Report must also be reviewed and approved by the relevant Division Administrator.

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Oregon Department of Environmental Quality

EQC MEETING DATE

Oregon Environmental Quality Commission Meeting

Agency Staff Report

Rulemaking Action Item NO. XX

Pacific Cast Technologies, Inc., Delisting 2019

Table of Contents

DEQ recommendation to the EQC  3

Overview  4

Optional Additional Topic from Notice  5

Statement of Need  6

Rules affected, authorities, supporting documents  7

Fee Analysis  8

Statement of fiscal and economic impact  9

Federal relationship  10

Land Use  11

Advisory Committee  12

Public Hearings  13

Summary of comments and DEQ responses  14

Commenters  17

Implementation  18

Five-year review  20

Draft Rules – With Edits Highlighted  22

Draft Rules – With Edits Included  23

Supporting Documents  24

Based on DEQ’s technical review of Pacific Cast Technologies, Inc.’s petition and the results of the delisting risk assessment data in the sampling and analysis results, DEQ recommends that the Environmental Quality Commission adopt the proposed rules in Attachment A as part of Chapter 340 of the Oregon Administrative Rules.

DEQ proposes EQC adopt the following motion:

“I move that the commission adopt the proposed rule amendments in Attachment A as part of chapter 340 of the Oregon Administrative Rules.”

Background

The subject of this rulemaking is removing a specific waste substance produced at a specific facility from being listed as a hazardous waste. This will allow the business that produces the waste to handle the material in a safe, but less expensive, manner.

EPA authorizes the state of Oregon to manage its hazardous waste program under the Resource Conservation and Recovery Act. EPA also authorizes Oregon to stop categorizing specific substances as hazardous waste in Oregon when specific conditions are met. This process is called “delisting.”

This rulemaking concerns a material called “wastewater treatment sludge from electroplating operations.” For ease of reading and understanding, from this point on, this document will refer to that material as “sludge.”

In April 2019, Pacific Cast Technologies, Inc., doing business as ATI Cast Products, submitted a petition for a F006 delisting rulemaking to DEQ. Following DEQ’s July 15, 2019 public notice for this proposed rulemaking, ATI completed the sale of its titanium-alloy casting and machine parts unit to Consolidated Precision Products Corps., doing business as Pacific Cast Technologies, Inc. While the facility has changed ownership, the production process and waste described in the April 2019 rulemaking remains the same.

ATI manufactures titanium-alloy castings and machine parts for the aerospace industry. After parts are cast and milled, they are treated in acid baths in a process known as chemical etching and milling.

Chemical etching and milling uses chemical solutions to dissolve metal layers. The U.S. Environmental Protection Agency defines wastewater treatment sludge from electroplating operations, including chemical etching and milling, as an F006-listed hazardous waste. Electroplating wastewater treatment sludges are listed F006 hazardous waste because they use cadmium, hexavalent chromium, nickel and complexed cyanides. When it is improperly managed, wastewater treatment sludge from chemical etching and milling processes has the potential to significantly contribute to an increase in mortality, serious injury, or environmental harm.

Historically, ATI managed sludge as a non-hazardous industrial waste at a permitted landfill. However, in 2017, DEQ conducted an updated review of chemical etching and milling operations at titanium-casting facilities in Oregon. DEQ then notified ATI that it should handle its sludge as listed F006 hazardous waste.

A petitioner that wants DEQ to delist a hazardous waste must comply with 40 C.F.R. sections 260.20 and 260.22, incorporated by reference in OAR 340-100-0020 and -0022. The petition must show the waste does not contain the chemicals for which EPA originally listed the waste in concentrations above appropriate risk-based standards. The risk-based evaluation must also determine that factors, including additional constituents other than those for which the waste was listed, do not warrant retaining the waste as a hazardous waste. In addition, the waste must not be ignitable, reactive, corrosive, or toxic.

In April 2019, ATI. petitioned DEQ to exclude sludge from the F006 listing. This delisting petition includes sludge ATI generates in producing titanium-alloy cast parts for the aerospace industry.

In November 2018, the Oregon Environmental Quality Commission adopted the state’s first rulemaking to delist a hazardous waste. DEQ concluded F006 chemical etching and milling wastewater treatment sludge produced by Selmet, Inc., in Albany, Oregon is excluded from listing as hazardous waste. To maintain the exclusion, Selmet must meet specified conditions described in OAR 340-101-0004.

DEQ proposal

DEQ proposes delisting the specific waste that is the subject of ATI’s petition. This action is justified based on DEQ’s review of the sampling and analysis results and the delisting petition SLR International Corporation prepared for ATI. DEQ proposes amending Oregon’s hazardous waste regulations in chapter 340, division 101, of the Oregon Administrative Rules, to delist Pacific Cast Technologies, Inc.’s F006 hazardous waste. DEQ is taking this action under the following authorities:

•  50 Federal Register 52629, Oct. 10, 1995 (EPA authority for Oregon to operate hazardous waste program)

•  40 C.F.R. sections 260.20 and 260.22 (authority for petitions to delist a substance), incorporated by reference in OAR 340-100-0020 and -0022

•  ORS 466.075(3) (authority to exempt substances from hazardous waste requirements)

•  OAR 340-100-0020, -0022 (authority to petition for exclusion)

Who does this affect?

This proposal affects only ATI and is specific to the waste ATI generates at its Albany, Oregon, 150 Queen Avenue SW, facility.

Before testing ATI’s chemical etching and milling sludge, DEQ worked with ATI and its contractor, SLR, to review the materials used in all stages of the titanium casting process. DEQ also worked with ATI to identify a sampling and analysis plan for sludge. DEQ staff approved the sampling and analysis plan in February 2019.

Parameters for Analysis

Based on DEQ’s review of chemicals used in the titanium casting process, SLR analyzed ATI’s sludge for cadmium, hexavalent chromium, cyanide, and nickel. These are the chemicals for which EPA lists F006 as a hazardous waste. SLR also analyzed the sludge for additional toxic chemicals that might be present in the waste. These could be total chromium, manganese, molybdenum, silver, vanadium, zirconium, and fluoride.

Screening Criteria

ATI. is requesting permission to dispose of up to 9,000 cubic yards of sludge per year. This volume accounts for current activities and potential future business growth.

Sludge samples are screened against concentrations of hazardous chemicals derived from EPA’s Delisting Risk Assessment Software. The software uses knowledge of the volume of waste and final disposition, along with toxicity information, to determine an acceptable concentration for the waste to go to a permitted, non-hazardous landfill.

Calculations are targeted to a carcinogenic risk not to exceed one in a million excess cancer and a non-carcinogenic hazard index of one. This is similar to other DEQ Land Quality programs using risk-based screening levels. The screening process uses the most conservative screening levels the software calculates for both total concentrations and concentrations that may leach into soil and groundwater.

Sampling and Analysis

As the RCRA Waste Sampling Draft Technical Guidance specifies, SLR used random unbiased composite sampling techniques to sample ATI’s sludge. SLR collected four composite sampling events from the sludge approximately one week apart on February 14, February 20, March 1, and March 7, 2019, to represent unique periods of sludge generation.

For each sampling event, SLR drew a grid dividing the sludge into a schematic of numbered squares. SLR used random numbers to select five squares from this grid to collect subsamples to composite for one analytical sample. For one of the sampling events, SLR collected two unique composite samples from the same waste bin to verify consistent results.

SLR composited and collected samples in appropriate sample containers for each analysis, placed the samples on ice, and shipped them to analytical laboratories. Pace Analytical did most analytical work and Specialty Analytical did some additional analysis. The Oregon Environmental Laboratory Accreditation Program certifies both labs.

SLR measured sludge composite samples for:

•  Metals (cadmium, total chromium, manganese, molybdenum, nickel, silver, vanadium) by EPA test method 6010B

•  Zirconium by method 6020D

•  Cyanide by method 9012B

•  Fluoride by method 9056A

•  Hexavalent chromium by method 7196A

Results and Risk Screening

The software provides screening levels for total concentrations of chemicals and concentrations that may leach into soil and water. ATI’s sludge is below the allowable concentrations of toxic metals, fluoride, and cyanide.

DEQ agrees ATI’s sludge is not ignitable, reactive, toxic or corrosive. Therefore, DEQ concludes it does not require handling as hazardous waste. ATI may therefore dispose of sludge in a permitted, non-hazardous Subtitle D landfill.

Recommendation

Based on DEQ’s technical review of ATI’s petition and the results of the sampling and analysis results, DEQ recommends that the Environmental Quality Commission adopt the proposed rules in Attachment A as part of Chapter 340 of the Oregon Administrative Rules. This will exclude ATI’s sludge from classification as a F006 hazardous waste.

Statement of Need

What need would the proposed rule address?

ATI is currently managing its chemical etching and milling wastewater treatment sludge as F006 listed hazardous waste. It is costly for ATI to manage the waste this way. ATI’s delisting petition demonstrated the waste can safely go to a permitted, non-hazardous Subtitle D landfill. This will also allow ATI to use a nearby landfill rather than trucking the waste approximately 200 miles to a hazardous waste landfill.

How would the proposed rule address the need?

If the Environmental Commission approves the delisting rulemaking, ATI can manage the sludge as non-hazardous industrial waste, significantly reducing management and disposal costs.

How will DEQ know the rule addressed the need?

DEQ will know when ATI no longer manages the sludge as hazardous waste because it will no longer list the waste on its annual hazardous waste management report.

Lead division

Land Quality

Program or activity

Hazardous Waste Program

Chapter 340 action

Documents relied on for rulemaking  

This rulemaking does not involve fees.

Statement of Fiscal and Economic Impact

Fiscal and Economic Impact

Following delisting, DEQ will no longer require ATI to pay hazardous waste management fees for its F006 listed hazardous waste. However, DEQ will continue to inspect ATI and offer compliance assistance.

ATI will receive positive fiscal benefits. Since June 2017, ATI has managed its chemical-etching and milling sludge as a F006 hazardous waste. This has cost approximately $250,000 annually. If the Environmental Quality Commission adopts the proposed rule amendments, ATI will pay less to handle and dispose of the materials that are the subject of this rulemaking.  

Statement of Cost of Compliance  

State agencies  

The proposed rule will reduce revenue for DEQ’s hazardous waste program. DEQ will no longer require the specific facility these rules affect to pay fees for hazardous waste disposal. In addition, DEQ will receive less fee revenue from the treatment, storage and disposal facility that is currently receiving the hazardous waste.

Local governments

DEQ anticipates there will be no fiscal or economic impact to local governments, as the rule impacts only one specific facility.

Public

DEQ anticipates there will be no fiscal or economic impact to the general public.

Large businesses - businesses with more than 50 employees

DEQ anticipates there will be a fiscal or economic impact to one large business that currently receives the F006 hazardous waste for disposal. If EQC adopts the proposed rule amendments, ATI will reduce its costs in handling and disposal of the materials that are the subject of this rulemaking.

Small businesses – businesses with 50 or fewer employees

a. Estimated number of small businesses and types of businesses and industries with small businesses subject to proposed rule.

DEQ anticipates there will not be adverse impacts on small businesses.

b. Projected reporting, recordkeeping and other administrative activities, including costs of professional services, required for small businesses to comply with the proposed rule.

These rule changes will not require any additional reporting, recordkeeping, or other administrative activities.

These rule changes will not require any additional reporting, recordkeeping or other administrative activities.These rule changes will not require any additional reporting, recordkeeping or other administrative activities.

c. Projected equipment, supplies, labor and increased administration required for small businesses to comply with the proposed rule.

No additional equipment, supplies or labor is required to comply with these rules.

d. Describe how DEQ involved small businesses in developing this proposed rule.

DEQ did not involve small businesses in developing these proposed rules because the rules do not affect small businesses.

DEQ did not involve small businesses in developing these proposed rules because the rules do not affect small businesses.

Documents relied on for fiscal and economic impact

Advisory committee fiscal review

DEQ did not convene an advisory committee. The proposed rulemaking affects only one specific facility, does not affect any small businesses or the public, and has a fiscal impact only on DEQ and the petitioner. There was a public hearing on August 19, 2019, and public comment period from July 15 to August 20 to gather public comments on the rulemaking.

Housing cost

As Oregon Revised Statute 183.534 requires, DEQ evaluated whether the proposed rules affect the development cost of a 6,000-square-foot parcel and construction of a 1,200-square-foot detached, single-family dwelling on that parcel. DEQ determined the proposed rules would have no effect on the development costs because the proposed rules do not have any bearing on housing.

Relationship to federal requirements

ORS 183.332, 468A.327, and OAR 340-011-0029 require DEQ to attempt to adopt rules that correspond with existing equivalent federal laws and rules unless there are reasons not to do so.

In this case, there is no comparable federal requirement. The proposed rule amendments are not in addition to or different from federal requirements.

Under the state and federal rules cited above, the EPA authorizes DEQ to operate Oregon’s hazardous waste program. The EPA also authorizes Oregon to exempt substances from being classified as a listed hazardous substances in Oregon if a petitioner meets the requirements stated in the state (OAR 340-100-0020 and -0022) and federal (40 C.F.R. §§260.20 and .22) rules. This action is consistent with, and DEQ is taking it, under the authority of, federal rules.

Land-use considerations

In adopting new or amended rules, Oregon Revised Statute 197.180 and Oregon Administrative Rule 340-018-0070 require DEQ to determine whether the proposed rules significantly affect land use. If so, DEQ must explain how the proposed rules comply with state wide land-use planning goals and local acknowledged comprehensive plans.

Under Oregon Administrative Rules 660-030-0005 and 340 Division 18, DEQ considers that rules affect land use if:

•  The statewide land use planning goals specifically refer to the rule or program, or

•  The rule or program is reasonably expected to have significant effects on:

◦  Resources, objectives or areas identified in the statewide planning goals, or

◦  Present or future land uses identified in acknowledged comprehensive plans

DEQ determined whether the proposed rules involve programs or actions that affect land use by reviewing its Statewide Agency Coordination plan. The plan describes the programs that DEQ determined significantly affect land use. DEQ considers that its programs specifically relate to the following statewide goals:

Statewide goals also specifically reference the following DEQ programs:

•  Nonpoint source discharge water quality program – Goal 16

•  Water quality and sewage disposal systems – Goal 16

•  Water quality permits and oil spill regulations – Goal 19

Determination

DEQ determined that these proposed rules do not affect land use under Oregon Administrative Rule 340-018-0030 or DEQ’s State Agency Coordination Program.

DEQ did not present additional information specific to this proposed rule revision.

Public notice

DEQ provided notice of the proposed rulemaking and rulemaking hearing on July 15, 2019, by:

•  Filing notice with the Oregon Secretary of State for publication in the August 1, 2019, Oregon Bulletin

•  Notifying EPA by mail

•  Posting the Notice of Rulemaking and draft rules on the webpage for this rulemaking, located at: ATI Delisting Rulemaking

•  Emailing 11,493 interested parties on the following DEQ lists through GovDelivery:

◦  Rulemaking

◦  Hazardous Waste

•  Emailing the following key legislators required under ORS 183.335:

◦  Senator Michael Dembrow, Chair, Senate Committee on Environment and Natural Resources

◦  Senator Alan Olsen, Vice Chari, Senate Committee on Environment and Natural Resources

◦  Representative Ken Helm, Chair, House Committee on Energy and Environment

◦  Representative E. Werner Reschke, Vice-Chair, House Committee on Energy and Environment

◦  Representative Sheri Schouten, Vice-Chair, House Committee on Energy and Environment

•  Posting on the DEQ event calendar: DEQ Calendar

•  Publishing notice in the following newspaper: The Albany Democrat Herald, July 15, 2019.  

DEQ held public hearing. DEQ received no comments at the hearing. Later sections of this document include a summary of the four comments received during the open public comment period, DEQ’s responses, and a list of the commenters. Original comments are on file with DEQ.

Presiding Officers’ Record

Hearing 1

Presiding Officer: Eileen Naples

The presiding officer convened the hearing, summarized procedures for the hearing, and explained that DEQ was recording the hearing. The presiding officer asked people who wanted to present verbal comments to sign the registration list, or if attending by phone, to indicate their intent to present comments. The presiding officer advised all attending parties interested in receiving future information about the rulemaking to sign up for GovDelivery email notices.

As Oregon Administrative Rule 137-001-0030 requires, the presiding officer summarized the content of the rulemaking notice.

Four people attended the hearing in person. No people attended by teleconference. No person presented any oral or written comments at the hearing.

Public comment period

DEQ received four public comments during the July 15 to August 20, 2019, public comment period. All four comments are included below. DEQ’s responses follows the comments. DEQ did not change the proposed rules in response to comments.

DEQ received one comment after the close of the public comment period at 4 p.m. on August 20. DEQ did not accept this comment as part of the public record and did not respond to the comment.

Comment 1 – Joshua Baker

How about more information so the public can make informed comments. Here are some suggestions:

◦  Who is ATI?

◦  When their toxic waste was first listed as such?

◦  What has changed to warrant a de-listing of ATI’s toxic sludge?

◦  Where does ATI’s toxic sludge go when ATI has discharged it?

◦  What public benefit does de-listing ATI’s toxic sludge serve?

Comment 2 – Liz

I would like more information about the rulemaking and why this sludge was declassified as toxic.

What testing has been done to deem this non-toxic?

I would like more information on how this conclusion was reached. What made it toxic in the first place and what changed? Other than that the policy has changed, the toxic levels have not.

Response 1

The following response addresses both comment 1 and comment 2.

Hazardous waste can be “characteristic,” meaning the waste exhibits one of the four hazardous waste characteristics. These include ignitability, corrosivity, reactivity, and toxicity. Hazardous waste can also be “listed,” meaning the waste is specifically named in the regulations because it is generally known to be hazardous waste. The subject of this rulemaking, F006, is a hazardous waste derived from a variety of industrial operations, including chemical etching and milling.

Before 2017, it was DEQ’s practice to consider chemical etching and milling wastewater treatment sludge (sludge) in facilities across the state to be non-hazardous because DEQ understood the sludge did not contain the chemicals F006 is listed for above risk-based concentrations. However, in 2017, DEQ re-examined this practice and made the decision to make the state position align with the U.S. Environmental Protection Agency’s position that the sludge must be managed as F006 hazardous waste until facilities demonstrate through a petition and delisting rulemaking that their sludge is not hazardous. Now, facilities in Oregon that produce listed hazardous waste have the opportunity to petition DEQ to exclude, or “delist” their sludge.

ATI manufactures titanium-alloy castings and machine parts for the aerospace industry using an electroplating process known as chemical etching and milling. In April 2019, ATI petitioned DEQ to delist its F006 waste.

ATI consulted with DEQ to review the materials that are currently used in all stages of the facility’s chemical etching and milling process and identify a sampling process for the resulting sludge. Based on this review, independent laboratories certified by the Oregon Environmental Laboratory Accreditation Program analyzed samples of ATI’s sludge. They analyzed for cadmium, chromium, cyanide, fluoride, hexavalent chromium, manganese, molybdenum, silver, nickel, vanadium, and zirconium.

To determine if ATI’s sludge is safe to dispose of in a permitted, non-hazardous landfill, DEQ compared sampling data to screening levels established by EPA’s delisting risk assessment software. This tool evaluates potential dangers to human health and the environment the sludge could cause if it is disposed of outside of a hazardous waste landfill. The tool considers the total volume of sludge, toxicity data for each chemical, potential exposure pathways, proposed disposal location, and risk levels chosen by the state.

Results of the results of the sampling, analysis, and screening process showed that ATI’s sludge does not exceed one-in-a-million excess cancer risk or a hazard index of one for human health receptors or ecological risk if it is disposed in a permitted, non-hazardous landfill.

The ATI F006 delisting rulemaking applies only to the specific chemical etching and milling sludge identified in the 2019 delisting petition. This delisting does not apply to other facilities in Oregon.

DEQ encourages all Oregon businesses to responsibly manage hazardous waste by eliminating toxic waste and preventing pollution. Preventing waste and pollution makes sense for the economy and the environment.

Comment 3 – KSS

1.  Were samples collected during peak production periods?

2.  Five samples collected over such a short period do not provide a representative sample set.

3.  What controls exist for the proper maintenance of the pretreatment system? DEQ should understand how pretreatment system failures may impact the quality of the dewatered material and require the facility to create a written plan for on-going evaluation of the pre-treatment system to ensure proper operation.

4.  Was the Albany wastewater authority provided notice of this petition? Their review is imperative.

Response

1 – DEQ does not believe that any variations in product throughput would lead to variations in waste characteristics.

2 – This is not an unusual number of samples for a delisting petition. The specifications required for the products at this facility lead to very little variation in the waste. DEQ will also require the facility to conduct annual verification sampling.

3 – This delisting only applies to wastewater treatment sludge from the system on site. Hazardous waste rules do not apply to wastewater sent from the facility to the City of Albany, and this rulemaking does not change any responsibilities the facility has to the City of Albany or others. ATI must continue operating the systems on site upstream of the sludge filter press for this rule to remain in effect.

4 – This delisting only applies to managing wastewater treatment sludges from the site. This does not authorize any change in the relationship between the facility and the City of Albany wastewater authority. The proposed action was noticed to DEQ’s GovDelivery lists for rule making and for hazardous waste. DEQ also placed an ad in the Albany Democrat Herald.

Comment 4 – AK Davis

Does this pertain to all wastewater treatment sewage sludge, also known as treated sewage sludge, or biosolids?

Response

No. This delisting only applies to wastewater treatment sludges from the described process at this facility, which are currently listed hazardous waste. This does not add or remove any regulation to any other sludge at any facility.

Implementation

Notification

The proposed rules would become effective upon filing with the Oregon Secretary of State on approximately Nov. 18, 2019. DEQ will notify ATI if the EQC approves of this proposed F006 wastewater treatment sludge delisting and agrees with DEQ’s recommendation that it is safe to manage the material in a DEQ-approved permitted solid waste landfill.

This delisting will remain in effect only as long as ATI maintains the same operating conditions generating the identified waste streams described in the delisting petition. If ATI makes changes to the process, they must handle the waste generated after the process change as hazardous waste until DEQ is able to confirm in writing that the wastewater treatment sludge continues to meet the conditions described in the 2019 delisting. ATI must also notify DEQ of this change within 30 days. Additionally, ATI is required to test their wastewater treatment sludge annually to ensure the sludge does not exceed the specified delisting concentrations.

Requirement  

Oregon law requires DEQ to review new rules within five years after EQC adopts them. The law also exempts some rules from review. DEQ determined whether the rules described in this report are subject to the five-year review. DEQ based its analysis on the law in effect when EQC adopted these rules.

Exemption from five-year rule review

The Administrative Procedures Act exempts the proposed rules from the five-year review because the proposed rule action would amend or repeal an existing rule. ORS 183.405(4).

The Oregon Department of Environmental Quality can provide documents in an alternate format or in a language other than English upon request. Call DEQ at 800-452-4011 or email deqinfo@deq.state.or.us.