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[Federal Register Volume 70, Number 226 (Friday, November 25, 2005)]
[Rules and Regulations]
[Pages 71002-71006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23229]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-8001-8]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA (also, ``the Agency'' or ``we'' in this preamble) is 
taking direct final action in granting a petition to exclude (or 
``delist'') up to 3,000 cubic yards of wastewater treatment sludges 
generated annually from the chemical conversion coating of aluminum 
generated by the General Motors Corporation (GM) Janesville Truck 
Assembly Plant (JTAP) in

[[Page 71003]]

Janesville, Wisconsin from the list of hazardous wastes.
    Today's action conditionally excludes the petitioned waste from the 
requirements of hazardous waste regulations under the Resource 
Conservation and Recovery Act (RCRA) when disposed of in a Subtitle D 
landfill which is permitted, licensed, or registered by a State to 
manage industrial solid waste. The rule also imposes testing conditions 
for waste generated in the future to ensure that this waste continues 
to qualify for delisting.

DATES: This rule is effective on January 24, 2006 without further 
notice unless we receive adverse comment by December 27, 2005. If we 
receive adverse comments, we will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Please send two copies of your comments to Todd Ramaly, 
Waste Management Branch (DW-8J), Environmental Protection Agency, 77 W. 
Jackson Blvd., Chicago, Illinois 60604. We will stamp comments 
postmarked after December 27, 2005 as ``late.'' These ``late'' comments 
may not be considered in formulating a final decision.

FOR FURTHER INFORMATION CONTACT: Todd Ramaly at (312) 353-9317. The 
RCRA regulatory docket for this final rule, number R5-GMJA-05, is 
located at the 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. The public may copy material from 
the regulatory docket at $0.15 per page. Contact Todd Ramaly for 
appointments at the address or phone number above, or by email at 
[email protected].

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's Petition to Delist Waste from Janesville Truck Assembly 
Plant
    A. What waste did JTAP petition to delist?
    B. What information must the generator supply?
III. EPA's Evaluation
IV. Public Comments Received on the Proposed Exclusion
    A. Who submitted comments on the proposed rule?
    B. Comments received and responses from EPA
V. Final Rule Granting This Petition
    A. What decision is EPA finalizing?
    B. When is the delisting effective?
    C. What are the terms of this exclusion?
    D. How does this action affect the states?
VI. 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 
(40 CFR) 261.11 and the background document for the waste. In addition, 
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 factors other than those for which the waste was 
listed warrant retaining it as a hazardous waste. (See 40 CFR 260.22, 
42 United States Code (U.S.C.) 6921(f) and the background documents for 
a listed waste.)
    Generators remain obligated under RCRA to confirm that their waste 
remains nonhazardous based on the hazardous waste characteristics even 
if EPA has ``delisted'' the wastes and to ensure that future generated 
wastes meet the conditions set.

B. What regulations allow a waste to be delisted?

    Under 40 CFR 260.20, 260.22, and 42 U.S.C. 6921(f), facilities may 
petition the EPA to remove their wastes from hazardous waste control by 
excluding them from the lists of hazardous wastes contained in 40 CFR 
261.31 and 261.32. Specifically, 40 CFR 260.20 allows any person to 
petition the Administrator to modify or revoke any provision of parts 
260 through 266, 268, and 273 of 40 CFR. 40 CFR 260.22 provides a 
generator the opportunity to petition the Administrator to exclude a 
waste from the lists of hazardous wastes on a ``generator specific'' 
basis.

II. GM's Petition To Delist Waste From Janesville Truck Assembly Plant

A. What waste did JTAP petition to delist?

    GM petitioned to exclude from the list of hazardous wastes 
contained in 40 CFR 261.31 wastewater treatment sludges resulting from 
zinc phosphating (a chemical conversion coating process) on truck 
bodies which have aluminum components.

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, historical accounts 
of waste generation, and the results of chemical analysis of the 
petitioned waste.

III. EPA's Evaluation

    EPA considered the original listing criteria and evaluated 
additional factors required by the Hazardous and Solid Wastes 
Amendments of 1984 (HSWA) These factors included: (1) Whether the waste 
is considered acutely toxic; (2) the toxicity of the constituents; (3) 
the concentration of the constituents in the waste; (4) the tendency of 
the hazardous constituents to migrate and to bioaccumulate; (5) its 
persistence in the environment once released from the waste; (6) 
plausible and specific types of management of the petitioned waste; (7) 
the quantity of waste produced; and (8) waste variability.
    Consistent with previous delistings, EPA identified plausible 
exposure routes (ground water, surface water, air) for hazardous 
constituents present in the petitioned waste based on improper 
management of a Subtitle D landfill. To evaluate the waste, we used the 
Delisting Risk Assessment Software program (DRAS), a Windows based 
software tool, to estimate the potential release of hazardous 
constituents from the waste and to predict the risk associated with 
those releases.

IV. Public Comments Received on the Proposed Exclusion

A. Who submitted comments on the proposed rule?

    The EPA received public comments on the proposed rule from the 
Alliance of Automobile Manufacturers and GM. Both were generally 
supportive of the delisting decision with some additional specific 
comments.

B. Comments received and responses from EPA

    (1) Comment: EPA should revise the F019 listing via federal rule 
change to specify that wastewater treatment sludge from chemical 
conversion coating processes on aluminum where hexavalent chromium and 
cyanide are not used should not be F019.

[[Page 71004]]

    EPA Response: The Agency is now considering revising the F019 
listing. EPA is examining the data collected as a result of this 
project, as well as past projects, as a basis for a possible revision 
to the F019 listing.
    (2) Comment: Total constituent concentrations should not be used by 
EPA to set delisting levels for this waste because total concentrations 
do not indicate the waste's potential to leach and have no scientific 
correlation with environmental impacts.
    EPA Response: EPA evaluates the potential environmental impact of 
plausible mismanagement of the waste in a solid waste landfill. EPA 
evaluates the potential off-site migration of waste particles and 
volatile organic compounds via air and surface water pathways as a 
result of inadequate cover and runoff control. EPA believes that 
inadequate daily cover and rainwater runoff control are plausible 
mismanagement scenarios for a solid waste landfill. Furthermore, since 
the source of this potential off-site migration is newly deposited 
waste at the surface of the landfill, total concentrations are 
appropriate inputs for fate and transport modeling.
    (3) Comment: It is unclear why a requirement for total chromium has 
been included as it has not been a constituent requiring analysis for 
previously granted petitions for this waste.
    EPA Response: Total chromium has been included as a constituent 
requiring analysis for previously granted petitions for this waste (See 
69 FR 60557, October 12, 2004). Nevertheless, EPA reevaluated total 
chromium as a result of the comment and examined the results of the 
DRAS model version used in support of the proposal. Conservatively 
assuming that one seventh of the chromium is present as hexavalent 
chromium, a known human carcinogen by inhalation, the limiting pathway 
determining the allowable level is inhalation of waste particles 
emitted from the landfill surface. Two changes were made to the 
calculation as a result of the reevaluation. An estimate for particle 
emissions resulting from vehicles driving over the exposed waste 
contained assumptions that were discovered to be unreasonably 
conservative for this waste. The number of vehicles driven over the 
waste was conservatively based on a historical exclusion with a much 
higher annual waste volume. EPA used a survey of industrial subtitle D 
facilities and the annual volume of waste requested by GM to derive 
more appropriate assumptions. It was also discovered that the DRAS 
program was reducing the uptake of particles inhaled by the receptor to 
account for an absorption efficiency, when, according to Agency 
toxicologists, this factor is no longer needed when using the most 
recent reference values presented in EPA's Integrated Risk Information 
System (IRIS). A new allowable level for total chromium of 5,300 
milligrams per kilogram (mg/kg) was derived using the updated methods, 
an increase from the proposed value of 3,200 mg/kg. The calculation of 
changes is documented in the Docket Report Reevaluating the Proposed 
Delisting Level for Chromium.
    (4) Comment: Quarterly verification sampling is not justified. The 
sampling frequency should be reduced to annually.
    EPA Response: Verification data submitted in conjunction with past 
delistings of this type of waste have shown significant variation on a 
quarterly basis over longer periods of time. Annual sampling would not 
detect such variations. Once enough verification data are collected to 
support a statistical analysis, a change in the frequency of 
verification sampling and/or sampling parameters may be considered.

V. Final Rule Granting This Petition

A. What decision is EPA finalizing?

    Today the EPA is finalizing an exclusion for up to 3,000 cubic 
yards of wastewater treatment sludge generated annually at the GM JTAP 
facility in Janesville, Wisconsin.
    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 HSWA. See Sec.  
222 of HSWA, 42 United States Code (U.S.C.) 6921(f), and 40 CFR 
260.22(d)(2)-(4).
    On April 25, 2005 EPA proposed to exclude or delist the wastewater 
treatment sludge generated at GM's Janesville facility from the list of 
hazardous wastes in 40 CFR 261.31 and accepted public comment on the 
proposed rule (see 70 FR 21165). 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 Janesville 
facility should be excluded from hazardous waste control.
    However, because the response to comments resulted in a change in 
the methodology used to evaluate the petitioned waste and a change in 
an allowable level under verification sampling, EPA is delaying the 
effectiveness of the rule to allow for the potential submission of 
adverse comments, even though the changes are considered 
noncontroversial and adverse comment is not anticipated. EPA believes 
the changes are not controversial because the change to the particulate 
inhalation exposure assessment is really a correction given the way 
data is developed in IRIS and the assumptions made to the particle 
emission scenario are more appropriate for this waste.

B. When is the delisting effective?

    This rule is effective on January 24, 2006 without further notice 
unless we receive adverse comment by December 27, 2005. If EPA receives 
adverse comments, we will publish a timely withdrawal in the Federal 
Register informing the public that the rule will not take effect. If 
adverse comments are received, they will be addressed as part of a 
future rulemaking.
    HSWA 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, can be 
made effective on January 24, 2006 (unless we receive adverse comment) 
under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).

C. What are the terms of this exclusion?

    JTAP must dispose of the waste in a Subtitle D landfill which is 
permitted, licensed, or registered by a state to manage industrial 
solid waste. JTAP must obtain and analyze on a quarterly basis a 
representative sample of the waste in accordance with the waste 
analysis plan. JTAP must verify that the concentrations of the 
constituents of concern do not exceed the allowable levels set forth in 
this exclusion.
    The list of constituents for verification is a subset of those 
initially tested for and is based on the occurrence of constituents at 
GM-JTAP and at the majority of auto-assembly facilities that already 
have exclusions granted for F019 (since GM-JTAP certified its process 
was consistent with the others). This exclusion applies only to a 
maximum annual volume of 3,000 cubic yards and is effective only if all 
conditions contained in this rule are satisfied.

[[Page 71005]]

D. How does this action affect the states?

    Today's exclusion is being issued under the Federal RCRA delisting 
program. Therefore, only states subject to Federal RCRA delisting 
provisions would be affected. This exclusion is not effective in states 
which have received authorization to make their own delisting 
decisions. Also, the exclusion may not be effective in states having a 
dual system that includes Federal RCRA requirements and their own 
requirements. EPA allows states to impose their own 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 (RCRA) and state (non-
RCRA) 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. If a participating facility 
transports the petitioned waste to or manages the waste in any state 
with delisting authorization, it must obtain a delisting from that 
state before it can manage the waste as nonhazardous in the state.

VI. 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) (Pub. L. 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 
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.

List of Subjects in 40 CFR Part 261

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

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

    Dated: November 16, 2005.
Margaret M. Guerriero,
Director, Waste, Pesticides and Toxics Division.

0
For the reasons set out in the preamble, 40 CFR part 261 is to be 
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. Table 1 of appendix IX of part 261 is amended by adding a new 
facility in alphabetical order 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
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               Facility                        Address                          Waste description
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                                                  * * * * * * *
General Motors Corporation,            Janesville, Wisconsin..  Wastewater treatment sludge, F019, that is
 Janesville Truck Assembly Plant.                                generated at the General Motors Corporation
                                                                 (GM) Janesville Truck Assembly Plant (JTAP) at
                                                                 a maximum annual rate of 3,000 cubic yards per
                                                                 year. The sludge must be disposed of in a lined
                                                                 landfill with leachate collection, which is
                                                                 licensed, permitted, or otherwise authorized to
                                                                 accept the delisted wastewater treatment sludge
                                                                 in accordance with 40 CFR part 258. The
                                                                 exclusion becomes effective as of January 24,
                                                                 2006.
                                                                1. Delisting Levels: (A) The concentrations in a
                                                                 TCLP extract of the waste measured in any
                                                                 sample may not exceed the following levels (mg/
                                                                 L): antimony--0.49; arsenic--0.22; cadmium--
                                                                 0.36; chromium--3.7; lead--5; nickel--68;
                                                                 selenium--1; thallium--0.21; tin--540; zinc--
                                                                 670; p-cresol--8.5; and formaldehyde--43. (B)
                                                                 The total concentrations measured in any sample
                                                                 may not exceed the following levels (mg/kg):
                                                                 chromium--5,300; mercury--7; and formaldehyde--
                                                                 540.
                                                                2. Quarterly Verification Testing: To verify
                                                                 that the waste does not exceed the specified
                                                                 delisting levels, GM must collect and analyze
                                                                 one representative sample of JTAP's sludge on a
                                                                 quarterly basis.

[[Page 71006]]

 
                                                                3. Changes in Operating Conditions: GM 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
                                                                 at JTAP significantly change. GM must handle
                                                                 wastes generated at JTAP after the process
                                                                 change as hazardous until it has demonstrated
                                                                 that the waste continues to meet the delisting
                                                                 levels and that no new hazardous constituents
                                                                 listed in appendix VIII of part 261 have been
                                                                 introduced and GM has received written approval
                                                                 from EPA.
                                                                4. Data Submittals: GM must submit the data
                                                                 obtained through verification testing at JTAP
                                                                 or as required by other conditions of this rule
                                                                 to EPA Region 5, Waste Management Branch (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. GM must
                                                                 compile, summarize, and maintain at JTAP
                                                                 records of operating conditions and analytical
                                                                 data for a minimum of five years. GM 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
                                                                 at JTAP 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 (e),
                                                                 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 GM 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.
                                                                (e) Maximum Allowable Groundwater Concentrations
                                                                 (mg/L):; antimony--0.006; arsenic--0.005;
                                                                 cadmium--0.005; chromium--0.1; lead--0.015;
                                                                 nickel--0.750; selenium--0.050; tin--23; zinc--
                                                                 11; p-Cresol--0.190; and formaldehyde--0.950.
 
                                                  * * * * * * *
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[FR Doc. 05-23229 Filed 11-23-05; 8:45 am]
BILLING CODE 6560-50-P
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