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Hazardous Waste Management System; Identification and Listing of Hazardous Waste
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: October 12, 2004 (Volume 69, Number 196)]
[Rules and Regulations]
[Page 60557-60560]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12oc04-9]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-7826-6]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA (also, ``the Agency'' or ``we'' in this preamble) is
granting a petition submitted by General Motors Corporation (GM)
Lordstown Assembly Plant in Lordstown, Ohio, to exclude or ``delist''
up to 2,000 cubic yards of wastewater treatment sludge from the
conversion coating on aluminum, RCRA hazardous waste F019, generated by
its wastewater treatment plant from the lists of hazardous wastes
contained in Subpart D of 40 CFR part 261.
After analysis, the EPA has concluded that the petitioned waste is
not hazardous when disposed of in a Subtitle D landfill. Today's action
conditionally excludes the petitioned waste from the requirements of
the hazardous waste regulations under the Resource Conservation and
Recovery Act (RCRA) only if the waste is disposed of in a Subtitle D
landfill which is permitted, licensed, or registered by a State to
manage industrial solid waste.
EFFECTIVE DATE: This rule is effective on October 12, 2004.
ADDRESSES: The RCRA regulatory docket for this final rule, number R5-
LRDTWN-04, is located at the U.S. EPA Region 5, 77 W. Jackson Blvd.,
Chicago, IL 60604, and is available for viewing from 8 a.m. to 4 p.m.,
Monday through Friday, excluding Federal holidays. Call Judy Kleiman at
(312) 886-1482 for appointments. The public may copy material from the
regulatory docket at $0.15 per page.
FOR FURTHER INFORMATION CONTACT: For technical information concerning
this document, contact Judy Kleiman at the address above or at (312)
886-1482.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Background
A. What Is a Delisting Petition?
B. What Regulations Allow a Waste to Be Delisted?
II. GM Lordstown's Delisting Petition
A. What Waste Did GM Lordstown Petition EPA To Delist?
B. What Information Must the Generator Supply?
III. EPA's Evaluation and Final Rule
A. What Decision Is EPA Finalizing and Why?
B. What Are the Terms of This Exclusion?
C. When Is the Delisting Effective?
D. How Does This Action Affect the States?
IV. Public Comment Received and EPA's Response
V. Regulatory Impact
I. Background
A. What Is a Delisting Petition?
A delisting petition is a request from a generator to exclude waste
from the list of hazardous wastes under RCRA regulations. In a
delisting petition, the petitioner must show that waste generated at a
particular facility does not meet any of the criteria for which EPA
listed the waste as set forth in Title 40, Code of Federal Regulations
(CFR) 261.11 and in the background document for the waste. A petitioner
must demonstrate that the waste does not exhibit any of the hazardous
waste characteristics (that is, ignitability, reactivity, corrosivity,
and toxicity) and must present sufficient information for us to decide
whether any factors other than those for which the waste was listed
warrant retaining it as a hazardous waste.
A generator remains obligated under RCRA to confirm that its waste
remains nonhazardous even if EPA has ``delisted'' the waste.
B. What Regulations Allow a Waste To Be Delisted?
Under 40 CFR 260.20 and 260.22, a generator may petition the EPA to
remove its wastes from hazardous waste control by excluding it from the
lists of hazardous wastes contained in Sec. Sec. 261.31 and 261.32.
Specifically, Sec. 260.20 allows any person to petition the
Administrator to modify or revoke any provision of parts 260 through
266, 268, and 273 of Title 40 of the Code of Federal Regulations. 40
CFR 260.22 provides a generator the opportunity to petition the
Administrator to exclude a waste on a ``generator specific'' basis from
the hazardous waste lists.
II. GM Lordstown's Delisting Petition
A. What Waste Did GM Lordstown Petition EPA To Delist?
In February, 1999 GM submitted a petition to exclude wastewater
treatment sludge from the conversion coating of aluminum, RCRA
hazardous F019, generated at its Lordstown Assembly Plant in Lordstown
Ohio from the list of hazardous wastes contained in 40 CFR 261.31.
B. What Information Must the Generator Supply?
A generator must provide sufficient information to allow the EPA to
determine that the waste does not meet any of the criteria for which it
was listed as a hazardous waste, and that there are no other factors,
including additional constituents, that could cause the waste to be
hazardous. To support its petition, GM submitted descriptions and
schematic diagrams of its manufacturing processes and the results of
the chemical analysis of the petitioned waste.
III. EPA's Evaluation and Final Rule
A. What Decision Is EPA Finalizing and Why?
Today the EPA is finalizing an exclusion for up to 2,000 cubic
yards of wastewater treatment sludge generated annually at the GM
Lordstown Assembly Plant in Lordstown, Ohio.
GM petitioned EPA to exclude, or delist, the wastewater treatment
sludge because GM believed that the petitioned waste does not meet the
criteria for which it was listed and that there are no additional
constituents or factors which could cause the waste to be hazardous.
Review of this petition included consideration of the original listing
criteria, as well as the additional factors required by the Hazardous
and Solid Waste Amendments of 1984 (HSWA). See section 222 of HSWA, 42
United States Code (U.S.C.) 6921(f), and 40 CFR 260.22(d)(2)-(4).
On June 25, 2004 EPA proposed to exclude or delist the wastewater
treatment sludge generated at GM's Lordstown facility from the list of
hazardous wastes in 40 CFR 261.31 and accepted public comment on the
proposed rule (65 FR 58015). EPA considered all comments received, and
for reasons stated in both the proposal and this document, we believe
that the wastewater treatment sludge from GM's Lordstown facility
should be excluded from hazardous waste control.
B. What Are the Terms of This Exclusion?
GM must dispose of the wastewater treatment sludge in a Subtitle D
landfill which is permitted, licensed, or registered by a State to
manage industrial waste. Any amount exceeding 2,000 cubic yards,
annually, is not delisted under this exclusion. GM must verify on a
quarterly basis that the concentrations of the constituents of concern
do not exceed the allowable levels set forth in this exclusion. This
exclusion is effective only if all
[[Page 60558]]
conditions contained in today's rule are satisfied.
C. When Is the Delisting Effective?
This rule is effective October 12, 2004. The Hazardous and Solid
Waste Amendments of 1984 amended section 3010 of RCRA to allow rules to
become effective in less than six months when the regulated community
does not need the six-month period to come into compliance. This rule
reduces rather than increases the existing requirements and, therefore,
is effective immediately upon publication under the Administrative
Procedure Act, pursuant to 5 U.S.C. 553(d).
D. How Does This Action Affect the States?
Because EPA is issuing today's exclusion under the Federal RCRA
delisting program, only States subject to Federal RCRA delisting
provisions would be affected. This exclusion may not be effective in
States having a dual system that includes Federal RCRA requirements and
their own requirements, or in States which have received our
authorization to make their own delisting decisions.
EPA allows States to impose their own non-RCRA regulatory
requirements that are more stringent than EPA's, under section 3009 of
RCRA. These more stringent requirements may include a provision that
prohibits a federally issued exclusion from taking effect in the State.
Because a dual system (that is, both Federal and State programs) may
regulate a petitioner's waste, we urge petitioners to contact the State
regulatory authority to establish the status of their wastes under the
State law.
EPA has also authorized some States to administer a delisting
program in place of the Federal program, that is, to make State
delisting decisions. Therefore, this exclusion does not apply in those
authorized States. If GM transports the petitioned waste to or manages
the waste in any State with delisting authorization, GM must obtain a
delisting from that State before it can manage the waste as
nonhazardous in the State.
IV. Public Comments Received and EPA's Responses
Comments were received from Alliance of Automobile Manufacturers
and General Motors, Worldwide Facilities Group. Both commenters were
supportive of the proposed rule.
Comment: Commenter supports the proposed delisting and the current
efforts of the Agency to develop a national solution to the F019
problem, recognizing that the process used by the automotive industry
does not use the constituents of concern.
Response: The Agency is currently reviewing available data in order
to assess how best to address the waste generated by zinc phosphating
operations at automotive assembly plants.
Comment: Commenter expressed concern over the exceptionally long
period of time required to delist this waste and urged the Region to
expedite the final decision on this petition.
Response: The Region proceeded to prepare the final decision on
this petition as soon as the comment period ended.
Comment: The version of the software used to evaluate a petition
should be available to the public.
Response: The software initially used to evaluate this petition is
available online. However, in the course of evaluating this petition,
several errors were discovered in the software. Rather than wait until
all errors could be identified and corrected in the software and the
risk data could be updated, several allowable limits in this final rule
were calculated manually. The software is currently being revised and
an updated version will be available to the public again after data
inputs have been updated and corrections have been made.
Comment: Total concentrations do not indicate the potential of a
constituent to leach in a landfill and should not be used in setting
allowable levels for this waste.
Response: Although total concentrations do not indicate
leachability to groundwater, they are used to estimate potential risk
from surface pathways including runoff to surface water, air
dispersion, and volatilization in the plausible mismanagement scenario
that the waste in the landfill is not always covered on a daily basis
and that the surface water runoff is not always controlled.
Comment: The Alliance previously requested that EPA issue an
interpretive rule to exclude this waste from the F019 classification.
Because EPA did not act on the request or address the industry's
concern, facilities have had to prepare costly and resource intensive
individual petitions to delist this waste.
Response: The Agency is currently reviewing available data in order
to assess how best to address the waste generated by zinc phosphating
operations at automotive assembly plants.
Comment: EPA has not reduced the regulatory burden despite the
pollution prevention efforts and the elimination of hexavalent chromium
and cyanide from the waste.
Response: The Agency is reviewing the available data in order to
assess how best to address the wastes generated by zinc phosphating
operations at automotive assembly plants. The Agency must consider all
factors including other constituents which could cause the waste to be
hazardous.
Comment: By failing to address this concern, the EPA is penalizing
the industry for the introduction of aluminum panels which could yield
environmental benefits.
Response: EPA recognizes the value of introducing aluminum but must
consider the presence of any constituent in the waste that could cause
it to be hazardous. See above response.
V. Regulatory Impact
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
rule is not of general applicability and therefore is not a regulatory
action subject to review by the Office of Management and Budget.
Because this rule is of particular applicability relating to a
particular facility, it is not subject to the regulatory flexibility
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or
to sections 202, 204, and 205 of the Unfunded Mandates Reform Act of
1995 (UMRA) (Public Law 104-4). Because this rule will affect only a
particular facility, it will not significantly or uniquely affect small
governments, as specified in section 203 of UMRA, or communities of
tribal governments, as specified in Executive Order 13175 (59 FR 22951,
November 6, 2000). For the same reason, this rule will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This
rule also is not subject to Executive Order 13045 (62 FR 19885, April
23, 1997), because it is not economically significant.
This rule does not involve technical standards; thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996),
in issuing this rule, EPA has taken the necessary steps to eliminate
drafting errors and ambiguity, minimize potential litigation, and
provide a clear legal standard for affected conduct. This rule does not
impose an information collection burden under the provisions of the
[[Page 60559]]
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. Section 804 exempts from section 801 the following types
of rules: (1) rules of particular applicability; (2) rules relating to
agency management or personnel; and (3) rules of agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required
to submit a rule report regarding today's action under section 801
because this is a rule of particular applicability.
EPA has complied with Executive Order 12630 (53 FR 8859, March 15,
1988) by examining the takings implications of the rule in accordance
with the ``Attorney General's Supplemental Guidelines for the
Evaluation of Risk and Avoidance of Unanticipated Takings'' issued
under the executive order. This rule is not a ``major rule'' as defined
by 5 U.S.C. 804(2). This rule will become effective on the date of
publication in the Federal Register.
List of Subjects in 40 CFR Part 261
Hazardous waste, Recycling, Reporting and recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: September 29, 2004.
Margaret M. Guerriero,
Director, Waste, Pesticides and Toxics Division.
? For the reasons set out in the preamble, 40 CFR part 261 is amended as
follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
? 1. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
? 2. In Table 1 of Appendix IX toPpart 261 add the following waste stream
in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Wastes Excluded Under 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 Assembly Waste water treatment plant sludge,
Plant, Lordstown, Ohio. F019, that is generated at General
Motors Corporation's Lordstown
Assembly Plant at a maximum annual
rate of 2,000 cubic yards per
year. The sludge must be disposed
of in a Subtitle D landfill which
is licensed, permitted, or
otherwise authorized by a state to
accept the delisted wastewater
treatment sludge. The exclusion
becomes effective as of (insert
final publication date).
1. Delisting Levels: (A) The
constituent concentrations
measured in the TCLP extract may
not exceed the following levels
(mg/L): antimony--0.66; arsenic--
0.30; chromium--5; lead--5;
mercury--0.15; nickel--90;
selenium--1; silver--5; thallium--
0.28; tin--720; zinc--900;
fluoride--130; p-cresol--11;
formaldehyde--84; and methylene
chloride--0.29 B) The total
constituent concentration measured
in any sample of the waste may not
exceed the following levels (mg/
kg): chromium--4,100 ;
formaldehyde--700; and mercury--
10. (C) Maximum allowable
groundwater concentrations ([mu]g/
L) are as follows: antimony--6;
arsenic--4.88; chromium--100;
lead--15; mercury--2; nickel--750;
selenium--50; silver--188;
thallium--2; tin--22,500; zinc--
11,300; fluoride--4,000; p-cresol--
188; formaldehyde--1,390; and
methylene chloride--5.
2. Quarterly Verification Testing:
To verify that the waste does not
exceed the specified delisting
levels, GM must collect and
analyze one waste sample on a
quarterly basis using methods with
appropriate detection levels and
elements of quality control.
3. Changes in Operating Conditions:
The facility must notify the EPA
in writing if the manufacturing
process, the chemicals used in the
manufacturing process, the
treatment process, or the
chemicals used in the treatment
process significantly change. GM
must handle wastes generated after
the process change as hazardous
until it has demonstrated that the
wastes continue to meet the
delisting levels and that no new
hazardous constituents listed in
appendix VIII of part 261 have
been introduced and it has
received written approval from
EPA.
[[Page 60560]]
4. Data Submittals: The facility
must submit the data obtained
through verification testing or as
required by other conditions of
this rule to U.S. EPA Region 5,
Waste Management Branch, RCRA
Delisting Program (DW-8J), 77 W.
Jackson Blvd., Chicago, IL 60604.
The quarterly verification data
and certification of proper
disposal must be submitted
annually upon the anniversary of
the effective date of this
exclusion. The facility must
compile, summarize, and maintain
on site for a minimum of five
years records of operating
conditions and analytical data.
The facility must make these
records available for inspection.
All data must be accompanied by a
signed copy of the certification
statement in 40 CFR 260.22(i)(12).
5. Reopener Language: (A) If,
anytime after disposal of the
delisted waste, GM possesses or is
otherwise made aware of any data
(including but not limited to
leachate data or groundwater
monitoring data) relevant to the
delisted waste indicating that any
constituent is at a level in the
leachate higher than the specified
delisting level, or is in the
groundwater at a concentration
higher than the maximum allowable
groundwater concentration in
paragraph (1), then GM must report
such data, in writing, to the
Regional Administrator within 10
days of first possessing or being
made aware of that data. (B) Based
on the information described in
paragraph (A) and any other
information received from any
source, the Regional Administrator
will make a preliminary
determination as to whether the
reported information requires
Agency action to protect human
health or the environment. Further
action may include suspending, or
revoking the exclusion, or other
appropriate response necessary to
protect human health and the
environment. (C) If the Regional
Administrator determines that the
reported information does require
Agency action, the Regional
Administrator will notify the
facility in writing of the actions
the Regional Administrator
believes are necessary to protect
human health and the environment.
The notice shall include a
statement of the proposed action
and a statement providing GM with
an opportunity to present
information as to why the proposed
Agency action is not necessary or
to suggest an alternative action.
GM shall have 30 days from the
date of the Regional
Administrator's notice to present
the information. (D) If after 30
days GM presents no further
information, the Regional
Administrator will issue a final
written determination describing
the Agency actions that are
necessary to protect human health
or the environment. Any required
action described in the Regional
Administrator's determination
shall become effective
immediately, unless the Regional
Administrator provides otherwise.
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[FR Doc. 04-22875 Filed 10-8-04; 8:45 am]
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