[Federal Register Volume 69, Number 196 (Tuesday, October 12, 2004)]
[Rules and Regulations]
[Pages 60557-60560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22875]



[[Page 60557]]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-7826-6]


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The EPA (also, ``the Agency'' or ``we'' in this preamble) is 
granting a petition submitted by General Motors Corporation (GM) 
Lordstown Assembly Plant in Lordstown, Ohio, to exclude or ``delist'' 
up to 2,000 cubic yards of wastewater treatment sludge from the 
conversion coating on aluminum, RCRA hazardous waste F019, generated by 
its wastewater treatment plant from the lists of hazardous wastes 
contained in Subpart D of 40 CFR part 261.
    After analysis, the EPA has concluded that the petitioned waste is 
not hazardous when disposed of in a Subtitle D landfill. Today's action 
conditionally excludes the petitioned waste from the requirements of 
the hazardous waste regulations under the Resource Conservation and 
Recovery Act (RCRA) only if the waste is disposed of in a Subtitle D 
landfill which is permitted, licensed, or registered by a State to 
manage industrial solid waste.

EFFECTIVE DATE: This rule is effective on October 12, 2004.

ADDRESSES: The RCRA regulatory docket for this final rule, number R5-
LRDTWN-04, is located at the U.S. EPA Region 5, 77 W. Jackson Blvd., 
Chicago, IL 60604, and is available for viewing from 8 a.m. to 4 p.m., 
Monday through Friday, excluding Federal holidays. Call Judy Kleiman at 
(312) 886-1482 for appointments. The public may copy material from the 
regulatory docket at $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For technical information concerning 
this document, contact Judy Kleiman at the address above or at (312) 
886-1482.

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

I. Background
    A. What Is a Delisting Petition?
    B. What Regulations Allow a Waste to Be Delisted?
II. GM Lordstown's Delisting Petition
    A. What Waste Did GM Lordstown Petition EPA To Delist?
    B. What Information Must the Generator Supply?
III. EPA's Evaluation and Final Rule
    A. What Decision Is EPA Finalizing and Why?
    B. What Are the Terms of This Exclusion?
    C. When Is the Delisting Effective?
    D. How Does This Action Affect the States?
IV. Public Comment Received and EPA's Response
V. Regulatory Impact

I. Background

A. What Is a Delisting Petition?

    A delisting petition is a request from a generator to exclude waste 
from the list of hazardous wastes under RCRA regulations. In a 
delisting petition, the petitioner must show that waste generated at a 
particular facility does not meet any of the criteria for which EPA 
listed the waste as set forth in Title 40, Code of Federal Regulations 
(CFR) 261.11 and in the background document for the waste. 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 us to decide 
whether any factors other than those for which the waste was listed 
warrant retaining it as a hazardous waste.
    A generator remains obligated under RCRA to confirm that its waste 
remains nonhazardous even if EPA has ``delisted'' the waste.

B. What Regulations Allow a Waste To Be Delisted?

    Under 40 CFR 260.20 and 260.22, a generator may petition the EPA to 
remove its wastes from hazardous waste control by excluding it from the 
lists of hazardous wastes contained in Sec. Sec.  261.31 and 261.32. 
Specifically, Sec.  260.20 allows any person to petition the 
Administrator to modify or revoke any provision of parts 260 through 
266, 268, and 273 of Title 40 of the Code of Federal Regulations. 40 
CFR 260.22 provides a generator the opportunity to petition the 
Administrator to exclude a waste on a ``generator specific'' basis from 
the hazardous waste lists.

II. GM Lordstown's Delisting Petition

A. What Waste Did GM Lordstown Petition EPA To Delist?

    In February, 1999 GM submitted a petition to exclude wastewater 
treatment sludge from the conversion coating of aluminum, RCRA 
hazardous F019, generated at its Lordstown Assembly Plant in Lordstown 
Ohio from the list of hazardous wastes contained in 40 CFR 261.31.

B. What Information Must the Generator Supply?

    A generator must provide sufficient information to allow the EPA to 
determine that the waste does not meet any of the criteria for which it 
was listed as a hazardous waste, and that there are no other factors, 
including additional constituents, that could cause the waste to be 
hazardous. To support its petition, GM submitted descriptions and 
schematic diagrams of its manufacturing processes and the results of 
the chemical analysis of the petitioned waste.

III. EPA's Evaluation and Final Rule

A. What Decision Is EPA Finalizing and Why?

    Today the EPA is finalizing an exclusion for up to 2,000 cubic 
yards of wastewater treatment sludge generated annually at the GM 
Lordstown Assembly Plant in Lordstown, Ohio.
    GM petitioned EPA to exclude, or delist, the wastewater treatment 
sludge because GM believed that the petitioned waste does not meet the 
criteria for which it was listed and that there are no additional 
constituents or factors which could cause the waste to be hazardous. 
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). See section 222 of HSWA, 42 
United States Code (U.S.C.) 6921(f), and 40 CFR 260.22(d)(2)-(4).
    On June 25, 2004 EPA proposed to exclude or delist the wastewater 
treatment sludge generated at GM's Lordstown facility from the list of 
hazardous wastes in 40 CFR 261.31 and accepted public comment on the 
proposed rule (65 FR 58015). EPA considered all comments received, and 
for reasons stated in both the proposal and this document, we believe 
that the wastewater treatment sludge from GM's Lordstown facility 
should be excluded from hazardous waste control.

B. What Are the Terms of This Exclusion?

    GM must dispose of the wastewater treatment sludge in a Subtitle D 
landfill which is permitted, licensed, or registered by a State to 
manage industrial waste. Any amount exceeding 2,000 cubic yards, 
annually, is not delisted under this exclusion. GM must verify on a 
quarterly basis that the concentrations of the constituents of concern 
do not exceed the allowable levels set forth in this exclusion. This 
exclusion is effective only if all

[[Page 60558]]

conditions contained in today's rule are satisfied.

C. When Is the Delisting Effective?

    This rule is effective October 12, 2004. The Hazardous and Solid 
Waste Amendments of 1984 amended section 3010 of RCRA to allow rules to 
become effective in less than six months when the regulated community 
does not need the six-month period to come into compliance. This rule 
reduces rather than increases the existing requirements and, therefore, 
is effective immediately upon publication under the Administrative 
Procedure Act, pursuant to 5 U.S.C. 553(d).

D. How Does This Action Affect the States?

    Because EPA is issuing today's exclusion under the Federal RCRA 
delisting program, only States subject to Federal RCRA delisting 
provisions would be affected. This exclusion may not be effective in 
States having a dual system that includes Federal RCRA requirements and 
their own requirements, or in States which have received our 
authorization to make their own delisting decisions.
    EPA allows States to impose their own non-RCRA regulatory 
requirements that are more stringent than EPA's, under section 3009 of 
RCRA. These more stringent requirements may include a provision that 
prohibits a federally issued exclusion from taking effect in the State. 
Because a dual system (that is, both Federal and State programs) may 
regulate a petitioner's waste, we urge petitioners to contact the State 
regulatory authority to establish the status of their wastes under the 
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 GM transports the petitioned waste to or manages 
the waste in any State with delisting authorization, GM must obtain a 
delisting from that State before it can manage the waste as 
nonhazardous in the State.

IV. Public Comments Received and EPA's Responses

    Comments were received from Alliance of Automobile Manufacturers 
and General Motors, Worldwide Facilities Group. Both commenters were 
supportive of the proposed rule.
    Comment: Commenter supports the proposed delisting and the current 
efforts of the Agency to develop a national solution to the F019 
problem, recognizing that the process used by the automotive industry 
does not use the constituents of concern.
    Response: The Agency is currently reviewing available data in order 
to assess how best to address the waste generated by zinc phosphating 
operations at automotive assembly plants.
    Comment: Commenter expressed concern over the exceptionally long 
period of time required to delist this waste and urged the Region to 
expedite the final decision on this petition.
    Response: The Region proceeded to prepare the final decision on 
this petition as soon as the comment period ended.
    Comment: The version of the software used to evaluate a petition 
should be available to the public.
    Response: The software initially used to evaluate this petition is 
available online. However, in the course of evaluating this petition, 
several errors were discovered in the software. Rather than wait until 
all errors could be identified and corrected in the software and the 
risk data could be updated, several allowable limits in this final rule 
were calculated manually. The software is currently being revised and 
an updated version will be available to the public again after data 
inputs have been updated and corrections have been made.
    Comment: Total concentrations do not indicate the potential of a 
constituent to leach in a landfill and should not be used in setting 
allowable levels for this waste.
    Response: Although total concentrations do not indicate 
leachability to groundwater, they are used to estimate potential risk 
from surface pathways including runoff to surface water, air 
dispersion, and volatilization in the plausible mismanagement scenario 
that the waste in the landfill is not always covered on a daily basis 
and that the surface water runoff is not always controlled.
    Comment: The Alliance previously requested that EPA issue an 
interpretive rule to exclude this waste from the F019 classification. 
Because EPA did not act on the request or address the industry's 
concern, facilities have had to prepare costly and resource intensive 
individual petitions to delist this waste.
    Response: The Agency is currently reviewing available data in order 
to assess how best to address the waste generated by zinc phosphating 
operations at automotive assembly plants.
    Comment: EPA has not reduced the regulatory burden despite the 
pollution prevention efforts and the elimination of hexavalent chromium 
and cyanide from the waste.
    Response: The Agency is reviewing the available data in order to 
assess how best to address the wastes generated by zinc phosphating 
operations at automotive assembly plants. The Agency must consider all 
factors including other constituents which could cause the waste to be 
hazardous.
    Comment: By failing to address this concern, the EPA is penalizing 
the industry for the introduction of aluminum panels which could yield 
environmental benefits.
    Response: EPA recognizes the value of introducing aluminum but must 
consider the presence of any constituent in the waste that could cause 
it to be hazardous. See above response.

V. Regulatory Impact

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
rule is not of general applicability and therefore is not a regulatory 
action subject to review by the Office of Management and Budget. 
Because this rule is of particular applicability relating to a 
particular facility, it is not subject to the regulatory flexibility 
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or 
to sections 202, 204, and 205 of the Unfunded Mandates Reform Act of 
1995 (UMRA) (Public Law 104-4). Because this rule will affect only a 
particular facility, it will not significantly or uniquely affect small 
governments, as specified in section 203 of UMRA, or communities of 
tribal governments, as specified in Executive Order 13175 (65 FR 67249, 
November 6, 2000). For the same reason, this rule will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This 
rule also is not subject to Executive Order 13045 (62 FR 19885, April 
23, 1997), because it is not economically significant.
    This rule does not involve technical standards; thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required 
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), 
in issuing this rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. This rule does not 
impose an information collection burden under the provisions of the

[[Page 60559]]

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 804 exempts from section 801 the following types 
of rules: (1) rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required 
to submit a rule report regarding today's action under section 801 
because this is a rule of particular applicability.
    EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 
1988) by examining the takings implications of the rule in accordance 
with the ``Attorney General's Supplemental Guidelines for the 
Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the executive order. This rule is not a ``major rule'' as defined 
by 5 U.S.C. 804(2). This rule will become effective on the date of 
publication in the Federal Register.

List of Subjects in 40 CFR Part 261

    Hazardous waste, Recycling, Reporting and recordkeeping 
requirements.

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

    Dated: September 29, 2004.
Margaret M. Guerriero,
Director, Waste, Pesticides and Toxics Division.


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 1 of Appendix IX toPpart 261 add the following waste stream 
in alphabetical order by facility to read as follows:

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

           Table 1.--Wastes Excluded From Non-Specific Sources
------------------------------------------------------------------------
          Facility/Address                    Waste description
------------------------------------------------------------------------
 
                                * * * * *
General Motors Corporation Assembly  Waste water treatment plant sludge,
 Plant, Lordstown, Ohio.              F019, that is generated at General
                                      Motors Corporation's Lordstown
                                      Assembly Plant at a maximum annual
                                      rate of 2,000 cubic yards per
                                      year. The sludge must be disposed
                                      of in a Subtitle D landfill which
                                      is licensed, permitted, or
                                      otherwise authorized by a state to
                                      accept the delisted wastewater
                                      treatment sludge. The exclusion
                                      becomes effective as of (insert
                                      final publication date).
                                     1. Delisting Levels: (A) The
                                      constituent concentrations
                                      measured in the TCLP extract may
                                      not exceed the following levels
                                      (mg/L): antimony--0.66; arsenic--
                                      0.30; chromium--5; lead--5;
                                      mercury--0.15; nickel--90;
                                      selenium--1; silver--5; thallium--
                                      0.28; tin--720; zinc--900;
                                      fluoride--130; p-cresol--11;
                                      formaldehyde--84; and methylene
                                      chloride--0.29 B) The total
                                      constituent concentration measured
                                      in any sample of the waste may not
                                      exceed the following levels (mg/
                                      kg): chromium--4,100 ;
                                      formaldehyde--700; and mercury--
                                      10. (C) Maximum allowable
                                      groundwater concentrations ([mu]g/
                                      L) are as follows: antimony--6;
                                      arsenic--4.88; chromium--100;
                                      lead--15; mercury--2; nickel--750;
                                      selenium--50; silver--188;
                                      thallium--2; tin--22,500; zinc--
                                      11,300; fluoride--4,000; p-cresol--
                                      188; formaldehyde--1,390; and
                                      methylene chloride--5.
                                     2. Quarterly Verification Testing:
                                      To verify that the waste does not
                                      exceed the specified delisting
                                      levels, GM must collect and
                                      analyze one waste sample on a
                                      quarterly basis using methods with
                                      appropriate detection levels and
                                      elements of quality control.
                                     3. Changes in Operating Conditions:
                                      The facility must notify the EPA
                                      in writing if the manufacturing
                                      process, the chemicals used in the
                                      manufacturing process, the
                                      treatment process, or the
                                      chemicals used in the treatment
                                      process significantly change. GM
                                      must handle wastes generated after
                                      the process change as hazardous
                                      until it has demonstrated that the
                                      wastes continue to meet the
                                      delisting levels and that no new
                                      hazardous constituents listed in
                                      appendix VIII of part 261 have
                                      been introduced and it has
                                      received written approval from
                                      EPA.

[[Page 60560]]

 
                                     4. Data Submittals: The facility
                                      must submit the data obtained
                                      through verification testing or as
                                      required by other conditions of
                                      this rule to U.S. EPA Region 5,
                                      Waste Management Branch, RCRA
                                      Delisting Program (DW-8J), 77 W.
                                      Jackson Blvd., Chicago, IL 60604.
                                      The quarterly verification data
                                      and certification of proper
                                      disposal must be submitted
                                      annually upon the anniversary of
                                      the effective date of this
                                      exclusion. The facility must
                                      compile, summarize, and maintain
                                      on site for a minimum of five
                                      years records of operating
                                      conditions and analytical data.
                                      The facility must make these
                                      records available for inspection.
                                      All data must be accompanied by a
                                      signed copy of the certification
                                      statement in 40 CFR 260.22(i)(12).
                                     5. Reopener Language: (A) If,
                                      anytime after disposal of the
                                      delisted waste, GM possesses or is
                                      otherwise made aware of any data
                                      (including but not limited to
                                      leachate data or groundwater
                                      monitoring data) relevant to the
                                      delisted waste indicating that any
                                      constituent is at a level in the
                                      leachate higher than the specified
                                      delisting level, or is in the
                                      groundwater at a concentration
                                      higher than the maximum allowable
                                      groundwater concentration in
                                      paragraph (1), then GM must report
                                      such data, in writing, to the
                                      Regional Administrator within 10
                                      days of first possessing or being
                                      made aware of that data. (B) Based
                                      on the information described in
                                      paragraph (A) and any other
                                      information received from any
                                      source, the Regional Administrator
                                      will make a preliminary
                                      determination as to whether the
                                      reported information requires
                                      Agency 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. (C) If the Regional
                                      Administrator determines that the
                                      reported information does require
                                      Agency action, the Regional
                                      Administrator will notify the
                                      facility in writing of the actions
                                      the Regional Administrator
                                      believes are necessary to protect
                                      human health and the environment.
                                      The notice shall include a
                                      statement of the proposed action
                                      and a statement providing GM with
                                      an opportunity to present
                                      information as to why the proposed
                                      Agency action is not necessary or
                                      to suggest an alternative action.
                                      GM shall have 30 days from the
                                      date of the Regional
                                      Administrator's notice to present
                                      the information. (D) If after 30
                                      days GM presents no further
                                      information, the Regional
                                      Administrator will issue a final
                                      written determination describing
                                      the Agency actions that are
                                      necessary to protect human health
                                      or the environment. Any required
                                      action described in the Regional
                                      Administrator's determination
                                      shall become effective
                                      immediately, unless the Regional
                                      Administrator provides otherwise.
------------------------------------------------------------------------

* * * * *
[FR Doc. 04-22875 Filed 10-8-04; 8:45 am]
BILLING CODE 6560-50-P