Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Rules and Regulations 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 

§§ 261.31 and 261.32. Specifically, 

§ 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

60558 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Rules and Regulations 

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

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Rules and Regulations 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.

■ For the reasons set out in the preamble, 

40 CFR part 261 is amended as follows:

PART 261—IDENTIFICATION AND 

LISTING OF HAZARDOUS WASTE

■ 1. The authority citation for part 261 

continues to read as follows:

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

6922, and 6938.

■ 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 §§ 260.20 and 260.22

TABLE 1.—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES

Facility/Address Waste description 

* * * * * 

General Motors Corporation Assembly Plant, Lordstown, Ohio ............... Waste water treatment plant sludge, 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 (μg/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. 

60560 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Rules and Regulations 

TABLE 1.—WASTES EXCLUDED FROM NON-SPECIFIC SOURCES

Facility/Address Waste description 

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

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[DA 04–3051, MB Docket No. 04–188, RM–

9880] 

Digital Television Broadcast Service; 

Glendive, MT

AGENCY: Federal Communications 

Commission.

ACTION: Final rule.

SUMMARY: The Commission, at the 

request of Glendive Broadcasting 

Corporation, substitutes DTV channel 

10 for DTV channel 15 at Glendive. See

69 FR 30855, June 1, 2004. DTV channel 

10 can be allotted to Glendive, Montana, 

in compliance with the principle 

community coverage requirements of 

Section 73.625(a) at reference 

coordinates 47–03–15 N. and 104–40–45 

W. with a power of 30, HAAT of 152 

meters and with a DTV service 

population of 23,000. With this action, 

this proceeding is terminated.

DATES: Effective November 15, 2004.

FOR FURTHER INFORMATION CONTACT: Pam 

Blumenthal, Media Bureau, (202) 418–

1600.

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Report 

and Order, MB Docket No. 04–188, 

adopted September 23, 2004, and 

released October 1, 2004. The full text 

of this document is available for public 

inspection and copying during regular 

business hours in the FCC Reference 

Information Center, Portals II, 445 12th 

Street, SW., Room CY–A257, 

Washington, DC. This document may 

also be purchased from the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc., 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554, telephone 301–

816–2820, facsimile 301–816–0169, or 

via-e-mail joshir@erols.com. 

This document does not contain [new 

or modified] information collection 

requirements subject to the Paperwork 

Reduction Act of 1995 (PRA), Public 

Law 104–13. In addition, therefore, it 

does not contain any new or modified 

‘‘information collection burden for 

small business concerns with fewer than 

25 employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

The Commission will send a copy of 

this [Report & Order etc.] in a report to 

be sent to Congress and the General 

Accounting Office pursuant to the 

Congressional Review Act, see 5 U.S.C. 

801(a)(1)(A).