[Federal Register Volume 62, Number 206 (Friday, October 24, 1997)]
[Rules and Regulations]
[Pages 55344-55348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28274]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-5913-8]


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Final Exclusion

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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[[Page 55345]]

SUMMARY: The Environmental Protection Agency (EPA) today is granting a 
petition submitted by General Motors Corporation (GM) to exclude (or 
``delist'') certain solid wastes from the lists of hazardous wastes 
contained in subpart D of part 261. EPA has concluded that the 
petitioned waste is not a hazardous waste when disposed of in a 
Subtitle D landfill. This exclusion applies only to the wastewater 
treatment plant (WWTP) sludge generated at GM's Orion Assembly Center 
in Lake Orion, Michigan. Today's action excludes the petitioned waste 
from the requirements of the hazardous waste regulations under the 
Resource Conservation and Recovery Act (RCRA) when disposed of in a 
Subtitle D landfill, but imposes testing conditions to ensure that the 
future-generated waste remains qualified for this exclusion.

EFFECTIVE DATE: October 24, 1997.

ADDRESSES: The regulatory docket for this final rule which contains the 
complete petition and supporting documents is located at U.S. EPA 
Region 5, 77 W. Jackson Blvd., Chicago, IL 60604-3590, and is available 
for viewing from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding Federal holidays. Call Steven Pak at (312) 886-4446 for 
appointments. The public may copy material from the regulatory docket 
at a cost of $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For technical information concerning 
this rule, contact Steven Pak at the address above or at (312) 886-
4446.

SUPPLEMENTARY INFORMATION:

I. Background

A. Authority

    Under sections 260.20 and 260.22, facilities may petition EPA to 
remove their wastes from hazardous waste control by excluding them from 
the lists of hazardous wastes contained in subpart D of part 261. 
Specifically, section 260.20 allows any person to petition the 
Administrator to modify or revoke any provision of parts 260 through 
266, 268 and 273; and section 260.22 provides generators the 
opportunity to petition the Administrator to exclude a waste on a 
``generator-specific'' basis from the hazardous waste lists. 
Petitioners must provide sufficient information to allow EPA to 
determine that the waste to be excluded does not meet any of the 
criteria under which the waste was listed as a hazardous waste. In 
addition, where there is reasonable basis to believe that factors 
(including additional constituents) other than those for which the 
waste was listed could cause the waste to be a hazardous waste, the 
Administrator must determine that such factors do not warrant retaining 
the waste as a hazardous waste.

B. History of This Rulemaking

    On January 12, 1996, GM petitioned EPA to exclude from hazardous 
waste control the WWTP sludge generated at its Orion Assembly Center. 
After evaluating the petition, on April 18, 1997, EPA proposed to 
exclude GM's waste from the lists of hazardous wastes in subpart D of 
part 261 (see 62 FR 19087). This rulemaking addresses the public 
comments received on the proposal and finalizes the proposed decision 
to grant GM's petition.

II. Disposition of Delisting Petition

    General Motors Corporation, Orion Assembly Center, 4555 Giddings 
Road, Lake Orion, Michigan 48361-1001

A. Proposed Exclusion

    GM petitioned EPA to exclude an annual volume of 1,500 cubic yards 
of WWTP filter press sludge from the list of hazardous wastes contained 
in section 261.31, and subsequently provided additional information to 
complete its petition. The WWTP sludge is listed as EPA Hazardous Waste 
No. 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 listed constituents of concern for EPA Hazardous Waste 
No. F019 are hexavalent chromium and cyanide (complexed) (see Appendix 
VII of part 261).
    In support of its petition, GM submitted detailed descriptions and 
schematic diagrams of its manufacturing and wastewater treatment 
processes, and analytical testing results for representative samples of 
the petitioned waste, including (1) the hazardous characteristics of 
ignitability, corrosivity, reactivity, and toxicity; (2) total 
constituent and Extraction Procedure for Oily Wastes (OWEP, SW-846 
Method 1330) analyses for the eight toxicity characteristic metals 
listed in section 261.24, plus antimony, beryllium, cobalt, copper, 
hexavalent chromium, nickel, tin, thallium, vanadium, and zinc; (3) 
total constituent and Toxicity Characteristic Leaching Procedure (TCLP, 
SW-846 Method 1311) analyses for 163 volatile and semi-volatile organic 
compounds; (4) total constituent and TCLP analyses for total sulfide, 
total cyanide, and complexed cyanide; and (5) total constituent 
analysis for oil and grease, total organic carbon, and percent solids.
    EPA evaluated the information and analytical data provided by GM 
and tentatively determined that GM had successfully demonstrated that 
the petitioned waste is not hazardous. See the proposed exclusion (62 
FR 19087; April 18, 1997) for a detailed explanation of EPA's 
evaluation.

B. Response to Comments

    EPA received public comment on the April 18, 1997, proposal from 
one interested party, the Ecology Center.
    Comment: The commenter states that due to the levels of metals and 
organic compounds in the petitioned waste, land disposal cannot be 
regarded as long-term protection of human health and the environment 
since the metals will remain forever and all landfills will eventually 
leak. The commenter cites a General Accounting Office report and 
stresses that serious problems, such as groundwater contamination, are 
encountered in a large number of ``state-of-the-art'' hazardous waste 
landfills.
    Response: EPA has assumed that disposal in a Subtitle D landfill is 
the most reasonable, worst-case disposal scenario for GM's WWTP sludge. 
The impacts of this scenario were predicted with EPA's Composite Model 
for Landfills (EPACML) which was developed by EPA to predict the 
transport of hazardous constituents through soil and ground water from 
a waste management unit to a receptor well serving as a drinking-water 
source. EPA stated in the final toxicity characteristic (TC) rule that 
the EPACML and the toxicity characteristic leaching procedure (TCLP) 
would be used for the delisting program in the future (see 55 FR 11833; 
March 29, 1990). The method EPA uses to apply the EPACML to delisting 
yields conservative yet reasonable estimations of contaminant fate and 
transport (56 FR 32993; July 18, 1991). One of the assumptions EPA used 
in applying the EPACML is that any liner beneath the landfill would 
eventually fail. Another assumption is that the landfill is an infinite 
source of hazardous constituents, whereas the levels of constituents 
emanating from a landfill may actually decrease over time. In addition, 
the model ignores certain attenuative mechanisms in the subsoils that 
in reality would tend to reduce the levels of constituents. Thus, EPA 
has modeled the WWTP sludge under a worst-case scenario of a 
``leaking'' Subtitle D landfill and has determined that the levels of 
inorganic and organic constituents at a hypothetical drinking

[[Page 55346]]

water well are below health-based levels of concern.
    Comment: The commenter states that while GM's WWTP sludge appears 
to pass the TCLP procedure, Subtitle D landfills generate unspecified 
quantities of organic acids and compounds some of which may lead to 
increased metal solubilities due to complexation reactions. The 
commenter concludes that laboratory procedures cannot be relied upon to 
represent real-world conditions.
    Response: While no laboratory test is universally appropriate in 
all circumstances, EPA does not agree with the commenter that no 
laboratory procedure can be relied upon to represent ``real-world'' 
conditions. The TCLP was designed, through extensive research and field 
studies, to simulate the leaching of both inorganic and organic 
compounds under the acidic conditions expected in actively decomposing 
municipal landfills. The specific environment modeled by the TCLP is 
disposal of industrial waste with municipal waste in a Subtitle D 
landfill. EPA believes that this co-disposal represents a reasonable 
worst-case management scenario. EPA also believes that the extraction 
fluids employed in the TCLP procedure are more aggressive than the 
organic acids generated from municipal wastes and that the TCLP is 
reasonably accurate in addressing the mobility of metals and other 
constituents. See 51 FR 21653, June 13, 1986, for further discussion of 
the TCLP. EPA is not aware of any factors that question the 
appropriateness of the TCLP for GM's petitioned waste.
    Comment: The commenter states that because of the metal content of 
the WWTP sludge and other metal bearing wastes generated by the 
automotive and related industries, land disposal results in a loss of 
valuable and non-renewable resources. The commenter identifies several 
commercially available metal recovery technologies used by the metal 
finishing industry and summarizes the advantages of metal recovery over 
conventional treatment and disposal. The commenter recommends that GM 
conduct an economic and technical feasibility study using the 
methodology of total cost accounting.
    Response: One of the objectives of RCRA is to conserve valuable 
material and energy resources by minimizing the generation of hazardous 
waste and the land disposal of hazardous waste by encouraging process 
substitution, materials recovery, properly conducted recycling and 
reuse, and treatment. However, RCRA's general objectives do not 
supersede the specific hazardous waste listing and delisting scheme 
established under RCRA. Having fully considered all of the relevant 
factors, EPA has determined that GM's petitioned waste does not meet 
the criteria for being considered a hazardous waste. RCRA's objective 
of resource recovery does not require, and indeed does not authorize, 
EPA to forego or reverse this determination.
    Similarly, the national policy under the Pollution Prevention Act 
(PPA) establishes a hierarchy which prefers pollution prevention at the 
source over recycling and prefers recycling over treatment and disposal 
in an environmentally safe manner. EPA fully supports this hierarchy 
and believes it sets forth a desirable general order of preferences for 
pollution control. Again, however, this policy is not a statutory or 
regulatory mandate. Nothing in the PPA requires or even contemplates 
that EPA must retain materials that EPA finds to be non-hazardous on 
the lists of hazardous wastes simply because there exists an ability to 
perform resource recovery on these materials.
    EPA has no authority to retain GM's petitioned waste as a listed 
hazardous waste simply because doing so would effectively promote 
reclamation over disposal. There is no question that waste minimization 
and resource recovery are desirable and are being encouraged by the 
EPA. EPA remains fully committed, in its waste programs and elsewhere, 
to promoting pollution prevention objectives. While EPA cannot require 
GM to evaluate the feasibility of metals recovery as the commenter 
recommends, EPA does encourage GM to consider the request.

C. Changes to Proposed Verification Testing Conditions

    In the proposed rulemaking, EPA included delisting levels for 14 
constituents that would be protective of human health and the 
environment and that the TCLP/OWEP extract of the petitioned waste 
could not exceed. However, the proposed levels of 180 mg/l for barium 
and 9 mg/l for chromium are greater than the hazardous waste toxicity 
characteristic (TC) levels of 100.0 mg/l and 5.0 mg/l respectively (see 
section 261.24). Today's rule lowers the proposed delisting levels for 
barium and chromium to levels below the TC levels to ensure that the 
petitioned waste, even though otherwise protective of human health and 
the environment, remains below the TC levels.
    Paragraph 1 in Table 1 of Appendix IX to part 261 now reads ``1. 
Verification Testing: GM must implement an annual testing program to 
demonstrate, based on the analysis of a minimum of four representative 
samples, that the constituent concentrations measured in the TCLP (or 
OWEP, where appropriate) extract of the waste are within specific 
levels. The constituent concentrations must not exceed the following 
levels (mg/l) which are back-calculated from the delisting health-based 
levels and a DAF of 90: Arsenic--4.5; Cobalt--189.; Copper--126.; 
Nickel--63.; Vanadium--18.; Zinc--900.; 1,2-Dichloroethane--0.45; 
Ethylbenzene--63.; 4-Methylphenol--16.2; Naphthalene--90.; Phenol--
1800.; and Xylene--900. The constituent concentrations must also be 
less than the following levels (mg/l) which are the toxicity 
characteristic levels: Barium--100.0; and Chromium (total)--5.0.''

D. Final Agency Decision

    For the reasons stated in both the proposal and this rule, EPA's 
conclusion is that GM's petitioned waste may be excluded from hazardous 
waste control. EPA, therefore, is granting a final exclusion for the 
WWTP sludge generated at a maximum rate of 1,500 tons per year (or 
1,500 cubic yards per year) at GM's Orion Assembly Center. This 
exclusion applies to the waste described in the petition only if the 
requirements described in Table 1 of part 261 are satisfied.
    Although management of the waste covered by this exclusion is 
removed from Subtitle C jurisdiction, this exclusion applies only where 
this waste is disposed of in a Subtitle D landfill which is permitted, 
licensed, or registered by a State to manage municipal and/or 
industrial solid waste.

III. Limited Effect of Federal Exclusion

    The final exclusion being granted today is issued under the Federal 
(RCRA) delisting program. States, however, are allowed to impose (non-
RCRA) regulatory requirements that are more stringent than EPA's, 
pursuant to section 3009 of RCRA. These more stringent requirements may 
include a provision which prohibits a Federally-issued exclusion from 
taking effect in the State. Because a petitioner's waste may be 
regulated under a dual system (i.e., both Federal (RCRA) and State 
(non-RCRA) programs), petitioners are urged to contact the State 
regulatory authority to determine the current status of their waste 
under State law.
    Furthermore, some States are authorized to administer a delisting 
program in lieu of the Federal program (i.e., to make their own 
delisting decisions). Therefore, this exclusion does not apply in those 
authorized States.

[[Page 55347]]

IV. Effective Date

    This rule is effective October 24, 1997. 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. That is the 
case here, because this rule reduces the existing requirements for 
persons generating hazardous wastes. These reasons also provide a basis 
for making this rule effective immediately, upon publication, under the 
Administrative Procedure Act, 5 U.S.C. 553(d).

V. Regulatory Impact

    Under Executive Order 12866, EPA must conduct an ``assessment of 
the potential costs and benefits'' for all ``significant'' regulatory 
actions. The effect of this rule is to reduce the overall costs and 
economic impact of EPA's hazardous waste management regulations. This 
reduction is achieved by excluding waste generated at a specific 
facility from EPA's lists of hazardous wastes, thereby enabling this 
facility to treat its waste as non-hazardous. Therefore, this rule does 
not represent a significant regulatory action under the Executive 
Order, and no assessment of costs and benefits is necessary. The Office 
of Management and Budget (OMB) has also exempted this rule from the 
requirement for OMB review under section (6) of Executive Order 12866.

VI. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612, 
whenever an agency is required to publish a general notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the impact of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
No regulatory flexibility analysis is required, however, if the 
Administrator or delegated representative certifies that the rule will 
not have any impact on any small entities.
    This rule will not have an adverse economic impact on any small 
entities since its effect would be to reduce the overall costs of EPA's 
hazardous waste regulations. Accordingly, I hereby certify that this 
regulation will not have a significant economic impact on a substantial 
number of small entities. This regulation, therefore, does not require 
a regulatory flexibility analysis.

VII. Paperwork Reduction Act

    Information collection and record-keeping requirements associated 
with this final rule have been approved by OMB under the provisions of 
the Paperwork Reduction Act of 1980 (P.L. 96-511, 44 U.S.C. 3501 et 
seq.) and have been assigned OMB Control Number 2050-0053.

VIII. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(UMRA), P.L. 104-4, which was signed into law on March 22, 1995, EPA 
generally must prepare a written statement for rules with Federal 
mandates that may result in estimated costs to State, local, and tribal 
governments in the aggregate, or to the private sector, of $100 million 
or more in any one year. When such a statement is required for EPA 
rules, under section 205 of the UMRA, EPA must identify and consider 
alternatives, including the least costly, most cost-effective or least 
burdensome alternative that achieves the objectives of the rule. EPA 
must select that alternative, unless the Administrator explains in the 
final rule why it was not selected or it is inconsistent with law. 
Before EPA establishes regulatory requirements that may significantly 
or uniquely affect small governments, including tribal governments, it 
must develop under section 203 of the UMRA a small government agency 
plan. The plan must provide for notifying potentially affected small 
governments, giving them meaningful and timely input in the development 
of EPA regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising them on compliance 
with the regulatory requirements. The UMRA generally defines a Federal 
mandate for regulatory purposes as one that imposes an enforceable duty 
upon State, local or tribal governments or the private sector. EPA 
finds that today's proposed delisting decision is deregulatory in 
nature and does not impose any enforceable duty upon State, local or 
tribal governments or the private sector. In addition, today's 
delisting decision does not establish any regulatory requirements for 
small governments and so does not require a small government agency 
plan under UMRA section 203.

IX. List of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and 
recordkeeping requirements.

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

    Dated: October 6, 1997.
Norman R. Niedergang,
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. Table 1 of Appendix IX of Part 261 is amended to add the 
following waste stream in alphabetical order by facility to read as 
follows:

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

                                                   Table 1.--Wastes Excluded From Non-Specific Sources                                                  
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                            Facility                                                    Address                                 Waste description       
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                                              *         *         *         *         *         *         *                                             
General Motors Corporation.....................................  Lake Orion, Michigan.................................  Wastewater treatment plant      
                                                                                                                         (WWTP) sludge from the chemical
                                                                                                                         conversion coating (phosphate  
                                                                                                                         coating) of aluminum (EPA      
                                                                                                                         Hazardous Waste No. F019)      
                                                                                                                         generated at a maximum annual  
                                                                                                                         rate of 1,500 tons per year (or
                                                                                                                         1,500 cubic yards per year),   
                                                                                                                         after October 24, 1997 and     
                                                                                                                         disposed of in a Subtitle D    
                                                                                                                         landfill.                      

[[Page 55348]]

                                                                                                                                                        
                                                                                                                        1. Verification Testing: GM must
                                                                                                                         implement an annual testing    
                                                                                                                         program to demonstrate, based  
                                                                                                                         on the analysis of a minimum of
                                                                                                                         four representative samples,   
                                                                                                                         that the constituent           
                                                                                                                         concentrations measured in the 
                                                                                                                         TCLP (or OWEP, where           
                                                                                                                         appropriate) extract of the    
                                                                                                                         waste are within specific      
                                                                                                                         levels. The constituent        
                                                                                                                         concentrations must not exceed 
                                                                                                                         the following levels (mg/l)    
                                                                                                                         which are back-calculated from 
                                                                                                                         the delisting health-based     
                                                                                                                         levels and a DAF of 90:        
                                                                                                                         Arsenic--4.5; Cobalt--189;     
                                                                                                                         Copper-- 126; Nickel--63;      
                                                                                                                         Vanadium--18; Zinc--900; 1,2-  
                                                                                                                         Dichloroethane--0.45;          
                                                                                                                         Ethylbenzene--63; 4-           
                                                                                                                         Methylphenol--16.2;            
                                                                                                                         Naphthalene--90; Phenol--1800; 
                                                                                                                         and Xylene--900. The           
                                                                                                                         constituent concentrations must
                                                                                                                         also be less than the following
                                                                                                                         levels (mg/l) which are the    
                                                                                                                         toxicity characteristic levels:
                                                                                                                         Barium--100.0; and Chromium    
                                                                                                                         (total)--5.0.                  
                                                                                                                        2. Changes in Operating         
                                                                                                                         Conditions: If GM significantly
                                                                                                                         changes the manufacturing or   
                                                                                                                         treatment process or the       
                                                                                                                         chemicals used in the          
                                                                                                                         manufacturing or treatment     
                                                                                                                         process, GM may handle the WWTP
                                                                                                                         filter press sludge generated  
                                                                                                                         from the new process under this
                                                                                                                         exclusion after the facility   
                                                                                                                         has demonstrated that the waste
                                                                                                                         meets the levels set forth in  
                                                                                                                         paragraph 1 and that no new    
                                                                                                                         hazardous constituents listed  
                                                                                                                         in Appendix VIII of Part 261   
                                                                                                                         have been introduced.          
                                                                                                                        3. Data Submittals: The data    
                                                                                                                         obtained through annual        
                                                                                                                         verification testing or        
                                                                                                                         paragraph 2 must be submitted  
                                                                                                                         to U.S. EPA Region 5, 77 W.    
                                                                                                                         Jackson Blvd., Chicago, IL     
                                                                                                                         60604-3590, within 60 days of  
                                                                                                                         sampling. Records of operating 
                                                                                                                         conditions and analytical data 
                                                                                                                         must be compiled, summarized,  
                                                                                                                         and maintained on site for a   
                                                                                                                         minimum of five years and must 
                                                                                                                         be made available for          
                                                                                                                         inspection. All data must be   
                                                                                                                         accompanied by a signed copy of
                                                                                                                         the certification statement in 
                                                                                                                         260.22(I)(12).                 
                                                                                                                                                        
                                              *         *         *         *         *         *         *                                             
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[FR Doc. 97-28274 Filed 10-23-97; 8:45 am]
BILLING CODE 6560-50-P