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

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: May 16, 2000 (Volume 65, Number 95)]
[Rules and Regulations]
[Page 31096-31100]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16my00-9]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-6606-5]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA (also, ``the Agency'' or ``we'' in this preamble) is
granting a petition submitted by General Motors Corporation, Lansing
Car Assembly--Body Plant (GM) in Lansing, Michigan, to exclude (or
``delist'') certain solid wastes generated by its wastewater treatment
plant (WWTP) from the lists of hazardous wastes contained in subpart D
of part 261.
After careful analysis, the EPA has concluded that the petitioned
waste is not hazardous waste when disposed of in a Subtitle D landfill.
This exclusion applies to wastewater treatment sludge generated at GM's
Lansing, Michigan facility. Accordingly, this final rule 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 but imposes testing conditions to ensure
that future-generated wastes remain qualified for delisting.

EFFECTIVE DATE: This rule is effective on May 16, 2000.

ADDRESSES: The RCRA regulatory docket for this proposed rule is located
at the U.S. EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60604, and
is available for viewing from 8:00 a.m. to 4:00 p.m., Monday through
Friday, excluding Federal holidays. Call Peter Ramanauskas at (312)
886-7890 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 Peter Ramanauskas at the address above or at
(312) 886-7890.

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 Wastewater Treatment Sludge
A. What Waste Did GM Petition EPA to Delist?
B. What Information Must the Generator Supply?
C. What Information Did GM Submit to Support This Petition?
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 Comments Received on the Proposed Exclusion
A. Who Submitted Comments on the Proposed Rule?
B. Comments and Responses From EPA
V. Regulatory Impact
VI. Congressional Review Act
VII. Executive Order 12875

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 40 Code of Federal Regulations (CFR)
Sec. 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.
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.

B. What Regulations Allow a Waste To Be Delisted?

Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to
remove their wastes from hazardous waste control by excluding them from
the lists of hazardous wastes contained in Secs. 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.
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.

[[Page 31097]]

II. GM's Petition to Delist Wastewater Treatment Sludge

A. What Waste Did GM Petition EPA to Delist?

In November 1998, GM petitioned EPA to exclude an annual volume of
1,250 cubic yards of F019 wastewater treatment sludges from the
chemical conversion coating of aluminum generated at its Lansing Car
Assembly--Body Plant located in Lansing, Michigan from the list of
hazardous wastes contained in 40 CFR 261.31.

B. What Information Must the Generator Supply?

Petitioners 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. In addition, where there is a
reasonable basis to believe that factors other than those for which the
waste was listed (including additional constituents) could cause the
waste to be hazardous, the Administrator must determine that such
factors do not warrant retaining the waste as hazardous.

C. What Information Did GM Submit to Support This Petition?

To support its petition, GM submitted (1) Descriptions and
schematic diagrams of its manufacturing and wastewater treatment
processes; (2) results of analyses for the characteristics of
ignitability, corrosivity, and reactivity; (3) total constituent
analyses and Extraction Procedure for Oily Wastes (OWEP, SW-846 Method
1330A) analyses for the eight toxicity characteristic metals listed in
40 CFR 261.24, plus antimony, beryllium, cobalt, copper, hexavalent
chromium, nickel, tin, thallium, vanadium, and zinc; (4) total
constituent and Toxicity Characteristic Leaching Procedure (TCLP), SW-
846 Method 1311 analyses for 56 volatile and 117 semi-volatile organic
compounds and formaldehyde; (5) total constituent and TCLP analyses for
sulfide, cyanide, and fluoride; (6) total constituent and TCLP analyses
for organochlorine pesticides and chlorinated herbicides; and (7)
analysis for oil and grease, and percent solids.

III. EPA's Evaluation and Final Rule

A. What Decision Is EPA Finalizing and Why?

Today the EPA is finalizing an exclusion to GM for its wastewater
treatment plant sludge generated at the GM facility in Lansing,
Michigan. GM petitioned EPA to exclude, or delist, the wastewater
treatment sludge because GM believes that the petitioned waste does not
meet the RCRA 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
Sec. 222 of HSWA, 42 United States Code (U.S.C.) 6921(f), and 40 CFR
260.22 (d)(2)-(4). On October 13, 1999, EPA proposed to exclude or
delist GM's wastewater treatment sludge from the list of hazardous
wastes in 40 CFR 261.31 and accepted public comment on the proposed
rule (64 FR 55443). EPA considered all comments received, and for
reasons stated in both the proposal and this document, we believe that
GM's waste should be excluded from hazardous waste control.

C. What Are the Terms of This Exclusion?

GM must dispose of the waste in a Subtitle D landfill which is
permitted, licensed, or registered by a state to manage industrial
waste. GM must verify on an annual basis that the concentrations of the
constituents of concern do not exceed the allowable levels set forth in
this exclusion. This exclusion applies to a maximum annual volume of
1,250 cubic yards of waste water treatment sludge and is effective only
if all conditions contained in today's rule are satisfied.

D. When Is the Delisting Effective?

This rule is effective May 16, 2000. 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).

E. 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 (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.
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 on the Proposed Exclusion

A. Who Submitted Comments on the Proposed Rule?

The EPA received public comments on the proposed notice published
on October 13, 1999 from General Motors Corporation, Ford Motor
Company, DaimlerChrysler Corporation, The American Zinc Association,
Mr. John S. Olczak, Michigan Department of Environmental Quality, Alcoa
Inc., Michigan Manufacturers Association, Reynolds Metals Company,
Alcan Aluminum Corporation, The Aluminum Association, and Heritage
Environmental Services, LLC.

B. Comments and Responses From EPA

Comment: Land Disposal Restrictions (LDRs) are not applicable to
waste which is not hazardous.
Response: LDRs will not apply to GM's petitioned waste because the
waste meets the delisting levels at the point of generation. However,
the Agency believes that in some circumstances wastes which meet
exemption levels may also have to meet LDR requirements. The Proposed
Hazardous Waste Identification Rule (HWIR) in the November 19, 1999
Federal Register states that ``Wastes that have met the HWIR exemption
levels after the point of generation, however, would still be subject
to LDRs even after they become exempt from the definition of hazardous,
because LDRs apply to wastes that are hazardous or have ever been
hazardous.''
Comment: LDRs for nickel and lead should not apply to the
petitioned waste

[[Page 31098]]

because LDRs do not apply to these constituents in F019 waste.
Response: In the proposed rule, the agency interpreted the
requirement to consider all factors which could cause the waste to be
hazardous to include consideration of LDRs for all hazardous
constituents. However, since the universal treatment standards for
nickel and lead are based on technology rather than on risk, there is
no risk basis for applying them to this waste. These LDRs will not
apply to GM's petitioned waste.
Comment: The frequency of verification testing is unnecessarily
burdensome.
Response: The levels set forth in condition 1 of this rule must be
verified on an annual basis. The monthly verification of the treatment
standards in the proposed rule has been eliminated in today's final
rule. The agency believes that verification on an annual basis is
appropriate.
Comment: Verification testing for the pesticides Beta-BHC and DDT
is inappropriate. These constituents were reported in only the extract
from one sample and the data were rejected due to laboratory
contamination. These chemicals are not used at this facility and were
not detected in any total analysis.
Response: The constituents in question are pesticides which are not
likely to be in the facility's waste. The Agency accepts the facility's
statement that these substances are not used at the facility and the
single TCLP analysis which indicates their presence should be rejected
on the basis of laboratory contamination.
Comment: Verification testing should be limited to Appendix IX
metals & other constituents that were present in the TCLP extract at
greater than \1/100\ of the delisting level. Testing for constituents
which do not exceed \1/100\th of the delisting level is unnecessary and
overly burdensome.
Response: The Agency believes that continued testing for all
constituents in condition 1 is appropriate.
Comment: The test for reactivity (if one becomes available) should
be required only when there is a process change that could cause the
waste to be reactive.
Response: Delisting policy requires demonstration that the wastes
are not characteristic. The analysis for total cyanide in Table 1 of
the proposed rule demonstrates that the waste will not be reactive for
hydrogen cyanide. However, the concentration of sulfide in this waste
is substantially greater and could cause the waste to be reactive.
Condition 1(c) has been modified to specify reactivity for sulfide.
Comment: Zinc is not included in the list of hazardous constituents
in Appendix VIII to 40 CFR Part 261 and is not included in the
definition of ``underlying hazardous constituent'' in Sec. 268.2(i).
Commenter requested that zinc be eliminated as a hazardous constituent
in GM's waste.
Response: Zinc is not referred to as a hazardous constituent in
this rule, but it is a constituent of concern and it can reasonably be
expected to be present at the point of generation. Table 3 of the
proposed rule, which includes zinc, sets forth allowable concentration
levels for constituents of concern.
Comment: Chromium VI is one of the constituents that caused the
F019 waste to be listed and it is not clear that chromium VI concerns
have been addressed.
Response: The allowable level for chromium is presented as total
chromium but the allowable level for total chromium was calculated
based on the conservative assumption that all chromium in the waste is
chromium VI.
Comment: In Condition 5(a) and (c), 10 days is not sufficient time
to review the data and prepare an adequate response.
Response: The Agency agrees that more time may be necessary to
initially validate the data, but believes the allotted time in
Condition 5(c) for a preliminary response is adequate. In the final
rule, the last two lines in Condition 5(a) have been changed to read
``* * * then GM must notify the Regional Administrator in writing
within 10 days and must report the data within 45 days of first
possessing or being made aware of that data.'' Condition 5(c) is
unchanged.
Comment: GM will be using high performance liquid chromatography
(HPLC) method for future analysis of formaldehyde.
Response: We agree that HPLC is an appropriate method for this
constituent.
Comment: The conditions would set a new and unjustified precedent
for all generators considering delisting.
Response: The conditions in this delisting are limited to a
specific waste at a specific facility. This rule does not set standards
for other generators.
Comment: Application of different testing protocols or
inconsistency by the USEPA between petitioners introduces uncertainty
to the exclusion process and may pose a barrier to interstate commerce.
Response: The conditions in this delisting are limited to a
specific waste at a specific facility. The delisting process excludes
waste on a ``generator specific'' basis. Due to the variety of waste
types that may be the subject of a delisting petition, there will
always be the potential that different testing protocols will be
utilized to adequately characterize the petitioned waste.
Comment: Commenter supports EPA's consistent application of the
published TCLP procedure to guide waste management decisions along with
the published guidance used to exclude petitioned hazardous waste from
regulation.
Response: As wastes and disposal environments may vary, the factors
influencing the leachability of wastes will also vary. For a more
complete assessment of leachability, it may be necessary to supplement
the TCLP with a modified TCLP as discussed in the most recent version
of the Region 6 Guidance Manual for the Petitioner. The Region 6
guidance manual is endorsed and recommended by Region 5.
Comment: The requirement to compile an annual report and submit the
data to the EPA is an additional burden on the regulated community as
the facility is already required to maintain the data for a period of
five years.
Response: Condition 4 of the proposed rule requires that the data
be compiled, summarized and maintained on site. Only a summary of the
data is to be submitted to the EPA. Today's rule does not require the
preparation of an annual report to the EPA.

V. Regulatory Impact

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a rule of general applicability and therefore is not a
``regulatory action'' subject to review by the Office of Management and
Budget. Because this action is a rule of particular applicability
relating to a 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 the rule will affect only one
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 13084 (63 FR 27655,
May 10, 1998). 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

[[Page 31099]]

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(c) 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. 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 does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).

VI. Congressional Review Act

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 Congress and to the Comptroller General of the United
States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, the Comptroller General of the United States prior to
publication of the final rule in the Federal Register. 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.

VII. Executive Order 12875

Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a state, local,
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If the mandate is unfunded, EPA must provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected state, local, and tribal
governments, the nature of their concerns, copies of written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of state, local, and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule does not create a mandate on state, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of Executive
Order 12875 do not apply to this rule.

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: May 3, 2000.
Robert Springer,
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 of Part 261 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
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------

* * * * * *
*
General Motors Corporation. Lansing Lansing, Michigan............. Wastewater treatment plant (WWTP) sludge
Car Assembly--Body Plant. from the chemical conversion coating
(phosphate coating) of aluminum (EPA
Hazardous Waste No. F019) generated at a
maximum annual rate of 1,250 cubic yards
per year and disposed of in a Subtitle D
landfill, after May 16, 2000.
1. Delisting Levels:
(A) The constituent concentrations
measured in the TCLP extract may not
exceed the following levels (mg/L):
Antimony--0.576; Arsenic--4.8; Barium--
100; Beryllium--0.384; Cadmium--0.48;
Chromium (total)--5; Cobalt--201.6;
Copper--124.8; Lead--1.44; Mercury--
0.192; Nickel--67.2; Selenium--1;
Silver--5; Thallium--0.192; Tin--2016;
Vanadium--28.8; Zinc--960; Cyanide--
19.2; Fluoride--384; Acetone--336; m,p--
Cresol--19.2; 1,1--Dichloroethane--
0.0864; Ethylbenzene--67.2;
Formaldehyde--672; Phenol--1920;
Toluene--96; 1,1,1--Trichloroethane--
19.2; Xylene--960.
(B) The total concentration of
formaldehyde in the waste may not
exceed 2100 mg/kg.
(C) Analysis for determining reactivity
from sulfide must be added to
verification testing when an EPA-
approved method becomes available.
2. Verification Testing: GM must implement
an annual testing program to demonstrate
that the constituent concentrations
measured in the TCLP extract (or OWEP,
where appropriate) of the waste do not
exceed the delisting levels established
in Condition (1).

[[Page 31100]]

3. Changes in Operating Conditions: If GM
significantly changes the manufacturing
or treatment process or the chemicals
used in the manufacturing or treatment
process, GM must notify the EPA of the
changes in writing. GM must handle wastes
generated after the process change as
hazardous until GM has demonstrated that
the wastes meet the delisting levels set
forth in Condition (1), 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 annual verification
testing or as required by other
conditions of this rule to U.S. EPA
Region 5, 77 W. Jackson Blvd. (DW-8J),
Chicago, IL 60604, within 60 days of
sampling. GM must compile, summarize, and
maintain on site for a minimum of five
years records of operating conditions and
analytical data. 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 environmental data (including but not
limited to leachate data or groundwater
monitoring data) or any other data
relevant to the delisted waste indicating
that any constituent identified in
Condition (1) is at a level in the
leachate higher than the delisting level
established in Condition (1), or is at a
level in the ground water or soil higher
than the level predicted by the CML
model, then GM must notify the Regional
Administrator in writing within 10 days
and must report the data within 45 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 10 days from the
date of the Regional Administrator's
notice to present the information.
(d) If after 10 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. 00-12306 Filed 5-15-00; 8:45 am]
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