[Federal Register Volume 69, Number 122 (Friday, June 25, 2004)]
[Proposed Rules]
[Pages 35554-35560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14460]
[[Page 35554]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-7779-1]
Hazardous Waste Management System; Proposed Exclusion for
Identifying and Listing Hazardous Waste
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule and request for comment.
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SUMMARY: The EPA (also, ``the Agency'' or ``we'' in this preamble) is
proposing to grant a petition submitted by General Motors Corporation,
Lordstown Assembly Plant (GM) in Lordstown, Ohio to exclude (or
``delist'') up to 2,000 cubic yards of sludge per year generated by its
wastewater treatment plant (WWTP) from the list of hazardous wastes.
The Agency has tentatively decided to grant the petition based on
an evaluation of waste-specific information provided by GM. This
proposed decision, if finalized, conditionally excludes the petitioned
waste from the requirements of hazardous waste regulations under the
Resource Conservation and Recovery Act (RCRA).
We conclude that GM's petitioned waste is nonhazardous with respect
to the original listing criteria and that there are no other factors
which would cause the waste to be hazardous.
DATES: We will accept public comments on this proposed decision until
August 9, 2004. We will stamp comments postmarked after the close of
the comment period as ``late.'' These ``late'' comments may not be
considered in formulating a final decision.
ADDRESSES: Please send two copies of your comments to Judy Kleiman,
Waste Management Branch (DW-8J), Environmental Protection Agency, 77 W.
Jackson Blvd., Chicago, Illinois 60604.
Any person may request a hearing on this proposed decision by
filing a request with Margaret Guerriero, Director, Waste, Pesticides
and Toxics Division, Environmental Protection Agency, 77 W. Jackson
Blvd., Chicago, Illinois 60604.
Your request for a hearing must reach EPA by July 12, 2004. The
request must contain the information prescribed in Sec. 260.20(d).
FOR FURTHER INFORMATION CONTACT: For technical information concerning
this document, contact Judy Kleiman at the address above or at 312-886-
1482. 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 a.m. to 4 p.m., Monday through Friday,
excluding federal holidays. Call Judy Kleiman for appointments. The
public may copy material from the regulatory docket at $0.15 per page.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
II. Background
A. What is a listed waste?
B. What is a delisting petition?
C. What factors must EPA consider in deciding whether to grant a
delisting petition?
III. EPA's Evaluation of the Waste Information and Data
A. What waste did GM petition EPA to delist?
B. How does GM generate the petitioned waste?
C. How did GM sample and analyze the petitioned waste?
D. What were the results of GM's analysis of the waste?
E. How did EPA evaluate the risk of delisting this waste?
F. What did EPA conclude about GM's analysis?
IV. Conditions for Exclusion
A. When would EPA finalize the proposed delisting exclusion?
B. How will GM manage the waste if it is delisted?
C. What are the maximum allowable concentrations of hazardous
constituents in the waste?
D. How frequently must GM test the waste?
E. What data must GM submit?
F. What happens if GM fails to meet the conditions of the
exclusion?
G. What must GM do if the process changes?
V. Regulatory Impact
A. How would this action affect states?
B. Is an assessment of costs and benefits required?
VI. Regulatory Flexibility Act
VII. Paperwork Reduction Act
VIII. Unfunded Mandates Reform Act
IX. Executive Order 12875
X. Executive Order 13045
XI. Executive Order 13084
XII. National Technology Transfer And Advancement Act
I. Overview Information
The EPA is proposing to grant a petition submitted by GM's
Lordstown Assembly Plant located in Lordstown, Ohio to exclude or
delist an annual volume of 2,000 cubic yards of F019 wastewater
treatment sludge from the lists of hazardous waste set forth in 40 CFR
261.32 and 261.33. GM claims that the petitioned waste does not meet
the criteria for which EPA listed it, and that there are no additional
constituents or factors which could cause the waste to be hazardous.
Based on our review described in section III, we agree with the
petitioner that the waste is nonhazardous. We reviewed the description
of the process which generates the waste and the analytical data
submitted by GM. We believe that the petitioned waste does not meet the
criteria for which the waste was listed, and that there are no other
factors which might cause the waste to be hazardous.
II. Background
A. What Is a Listed Waste?
The EPA published an amended list of hazardous wastes from
nonspecific and specific sources on January 16, 1981, as part of its
final and interim final regulations implementing section 3001 of RCRA.
The EPA has amended this list several times and published it in 40 CFR
261.31 and 261.32.
We list these wastes as hazardous because: (1) They typically and
frequently exhibit one or more of the characteristics of hazardous
wastes identified in subpart C of part 261 (that is, ignitability,
corrosivity, reactivity, and toxicity) or (2) they meet the criteria
for listing contained in Sec. Sec. 261.11(a)(2) or (3).
B. What Is a Delisting Petition?
Individual waste streams may vary depending on raw materials,
industrial processes, and other factors. Thus, while a waste described
in these regulations generally is hazardous, a specific waste from an
individual facility meeting the listing description may not be.
A procedure to exclude or delist a waste is provided in 40 CFR
260.20 and 260.22 which allows a person, or a facility to submit a
petition to the EPA or to an authorized state, demonstrating that a
specific waste from a particular generating facility is not hazardous.
In a delisting petition, the petitioner must show that a waste does
not meet any of the criteria for listed wastes in 40 CFR 261.11 and
that the waste does not exhibit any of the hazardous waste
characteristics of ignitability, reactivity, corrosivity, or toxicity.
The petitioner must present sufficient information for us to decide
whether any factors in addition to those for which the waste was listed
warrant retaining it as a hazardous waste. (See Sec. 260.22, 42 U.S.C.
6921(f) and the background documents for the listed wastes.)
If a delisting petition is granted, the generator remains obligated
under RCRA to confirm that the waste remains nonhazardous.
[[Page 35555]]
C. What Factors Must EPA Consider in Deciding Whether To Grant a
Delisting Petition?
In reviewing this petition, we considered the original listing
criteria and the additional factors required by the Hazardous and Solid
Waste Amendments of 1984 (HSWA). See section 222 of HSWA, 42 U.S.C.
6921(f), and 40 CFR 260.22(d)(2)-(4). We evaluated the petitioned waste
against the listing criteria and factors cited in Sec. Sec.
261.11(a)(2) and (3).
Besides considering the criteria in 40 CFR 260.22(a), Sec. Sec.
261.11(a)(2) and (3), 42 U.S.C. 6921(f), and in the background
documents for the listed wastes, EPA must consider any factors
(including additional constituents) other than those for which we
listed the waste if these additional factors could cause the waste to
be hazardous.
Our tentative decision to delist waste from GM's Lordstown facility
is based on our evaluation of the waste for factors or criteria which
could cause the waste to be hazardous. 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 constituents to migrate and to bioaccumulate;
(5) the persistence in the environment of any constituents 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.
EPA must also consider as hazardous wastes mixtures containing
listed hazardous wastes and wastes derived from treating, storing, or
disposing of listed hazardous waste. See 40 CFR 261.3(a)(2)(iv) and
(c)(2)(i), called the ``mixture'' and ``derived-from'' rules,
respectively. Mixture and derived-from wastes are also eligible for
exclusion but remain hazardous until excluded.
III. EPA's Evaluation of the Waste Information and Data
A. What Wastes Did GM Petition EPA To Delist?
In February 1999, GM petitioned EPA to exclude an annual volume of
1,000 cubic yards (yd3) of F019 WWTP filter press sludge
generated at its Lordstown Assembly Plant located in Lordstown, Ohio
from the list of hazardous wastes contained in 40 CFR 261.31. On April
22, 2004, GM requested that the annual volume of F019 waste under
consideration for a delisting be increased to 2,000 yd3.
F019 is defined in Sec. 261.32 ``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.'' GM claims that the petitioned
waste does not meet the criteria for which F019 was listed (i.e.,
hexavalent chromium and complexed cyanide) and that there are no other
factors which would cause the waste to be hazardous.
B. How Does GM Generate the Petitioned Waste?
Automobile bodies are cleaned with city water and a surfactant to
loosen and remove soils and metal working fluids in preparation for a
uniform dense phosphate coating. After rinsing, a phosphate conditioner
is applied to the automobile bodies in a 27,000 gallon immersion tank.
The bodies are then immersed in a 72,000 gallon tank where the zinc-
nickel phosphate coating is applied. The phosphating bath includes zinc
phosphate, nickel phosphate, and phosphoric acid. Following the
phosphating, the automobile bodies are rinsed, sprayed with a non-
chromium sealer and rinsed again. There are no active overflows from
the phosphating tank. A paint film is then cathodically
electrodeposited on the automobile bodies in a 93,000 gallon immersion
tank followed by a multi-stage rinse before baking at 350 degrees for
45 minutes.
Color-specific primers, base coats and clear coats are applied in
spray booths with manual and automated spray zones. Spray booth ambient
air is forced through a downdraft wash water recirculation system to
remove airborne paint mists. Within the recirculation system, water is
chemically treated and filtered. When dissolved solids reach 40,000
milligrams per liter (mg/l) in the wash water, a portion of the wash
water is discharged to the wastewater treatment plant (WWTP). The
filtered solids from the recirculation system are disposed of as solid
wastes.
The WWTP receives (1) process waste water which includes car
washing waste water, plant clean up and maintenance waste water, and
spray booth wash water, (2) phosphate waste water from the phosphating
line, (3) the waste stream from the electrodeposition of the primer
paint operations (ELPO) and (4) the oily waste stream from the
fabrication plant.
The general process waste water enters a solids separator and is
then discharged to one of five process waste holding tanks. The
phosphating wastewater and the ELPO wastewater blend with the general
process waste water within the process waste holding tanks. Prior to
entering the process waste holding tanks, the ELPO waste water is
segregated in one of two 150,000 gallon ELPO holding tanks to allow for
controlled metering of the ELPO waste water into the process waste
holding tanks. The phosphate waste water may also be segregated before
being discharged into the process waste holding tanks. The process
wastewater in the holding tanks is pumped to the blend tank where it is
treated with sodium hydroxide and flocculants and then enters a 6,000
gallon flash mix tank. From the flash mix tank, the wastewater enters a
clarifier. The settled sludge from the clarifier is pumped to a sludge
thickening tank and then to a conditioner tank where it is mixed and
pumped into a plate and frame filter press. The dewatered sludge drops
into a roll-off box and is disposed of as F019. The dewatered sludge
from the filter press is the subject of this petition.
The supernatant from the clarifier passes through a sand filter, is
pH adjusted and is mixed with the oily waste water before it is
discharged to the city sewer system. Infrequently, the sand filter is
backwashed and the solids from the sand filter are routed to the waste
water treatment plant to be incorporated into the final sludge. Before
mixing with the process waste water, the oily waste water is mixed with
emulsifiers and is pumped to a dissolved air floatation unit (DAF). The
oily sludge from the DAF may be pumped to the sludge thickener tank
where it commingles with the sludge from the process waste or the oily
sludge may be hauled off site for disposal as a solid waste. The sludge
filter cake sampled for this petition was generated when the oily
sludge from the DAF was being pumped to the sludge thickener tank.
C. How Did GM Sample and Analyze the Petitioned Waste?
On December 16, 1997 GM sampled the WWTP sludge from four separate
roll-off boxes representing sludge collected over a period of
approximately 4 weeks. On June 9, 1998 GM sampled the sludge in another
roll-off box representing the sludge collected over a period of one
week. GM collected one composite and one grab sample of sludge from
each roll-off box during each sampling event. Composite samples
consisted of four individual full-depth core grab samples mixed
together to form one sample.
GM analyzed composite samples for the following parameters using
the methods specified: (1) Total constituent analysis and Oily Waste
Extraction Procedure for metals in Appendix IX of 40 CFR part 264,
including antimony,
[[Page 35556]]
arsenic, barium, beryllium, cadmium, chromium, cobalt, copper, lead,
mercury,\1\ nickel, selenium, silver, thallium, tin, vanadium, and zinc
(SW-846 Methods 6010B, 6020A and 1330A); \2\ (2) total constituent and
Toxicity Characteristic Leaching Procedure (TCLP) analysis for 120
semi-volatile organic compounds (SW-846 Methods 8270B, and 1311); (3)
total constituent and TCLP analysis for formaldehyde (Association of
Official Analytical Chemists Method 931.08 and SW-846 Method 1311); (4)
total constituent and TCLP analysis for sulfide (SW-846 Methods 9030A
and 1311); (5)total constituent and TCLP analysis for cyanide (SW-846
Methods 9012, 9013,and 1311); \3\ (6) total constituent and TCLP
analysis for fluoride (EPA Method 340.2 and SW-846 Method 1311); (7)
total constituent and TCLP analysis for organochlorine pesticides and
chlorinated herbicides(SW-846 Methods 8081,8151 and 1311); and (8)
total oil and grease (SW-846 Method 9071A). GM also tested the waste
for the characteristics of ignitability, corrosivity(SW 846 Method
1010), and pH (SW 846 Method 9045C).
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\1\ Mercury was determined using SW-846 methods 7470A for
aqueous samples and 7471A for nonaqueous samples.
\2\ In step 7.10 of Method 1330, Method 1311 was substituted for
Method 1310.
\3\ Deionized water was used as the extraction fluid instead of
the fluid specified in the method.
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GM analyzed full-depth core grab samples for total constituent and
TCLP analysis for 55 volatile organic compounds (VOCs) (SW-846 Method
8260A and SW-846 Method 1311)
D. What Were the Results of GM's Analysis of Its Waste?
The table below presents the maximum observed total and leachate
concentrations for all detected constituents and maximum allowable
total and TCLP concentrations for those constituents.
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Allowable levels for 2,000 cubic yards
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Maximum concentration observed Maximum allowable concentrations Maximum
Constituents ------------------------------------------------------------------------ allowable
groundwater
Total (mg/kg) TCLP (mg/kg) Total (mg/kg) TCLP (mg/kg) concentration
([mu]g/l)
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acetone....................................................... \J\ 0.488 < 0.05 NA 2,100 33,800
antimony...................................................... 12.6 X 0.017 700,000 0.66 6
arsenic....................................................... 4.5 X 0.125 10,000 0.3 4.88
barium........................................................ 4,280 0.431 NA \1\ 100 2,000
beryllium..................................................... 0.23 \J\ 0.008 20,000 1.3 4
bis (2-ethylhexyl) phthalate.................................. \J\ 102 < 0.05 NA 0.20 3.2
cadmium....................................................... 0.93 < 0.031 27,000 0.48 5
chloromethane................................................. \J\ 0.087 < 0.01 3,700 0.32 5.63
chromium...................................................... 759 \JX\ 0.127 4,100 5 100
cobalt........................................................ 5.4 X 0.049 18,000 24 750
copper........................................................ \J\ 1,490 \JX\ 0.039 NA 29,000 1,300
m-cresol...................................................... < 367 0.0343 NA 110 1,875
p-cresol...................................................... < 367 0.0343 NA 11 188
di-n-octyl phthalate.......................................... \J\ 91.5 < 0.05 NA 0.22 2.6
ethylbenzene.................................................. \J\ 0.185 < 0.01 NA 43 700
formaldehyde.................................................. 4 \J\ 0.2 700 84 1,390
lead.......................................................... \J\ 5,660 X 0.16 630,000 \1\ 5 15
mercury....................................................... \J\ 0.11 < 0.0055 10 \1\ 0.2 2
methyl ethyl ketone........................................... \J\ 0.179 < 1 NA \1\ 200 22,500
methyl isobutyl ketone........................................ \J\ 0.218 < 0.05 NA 180 3,000
methylene chloride............................................ < 0.4 0.053 150,000 0.29 5
nickel........................................................ 5,720 46.209 NA 91 750
phenol........................................................ < 367 0.057 NA 690 11,300
selenium...................................................... 2.6 X 0.015 NA \1\ 1 50
silver........................................................ 1.1 X 0.09 NA \1\ 5 188
styrene....................................................... \J\ 0.017 < 0.01 NA 6.1 100
thallium...................................................... 1.5 X 0.009 140,000 0.28 2
tin........................................................... 609 X 3.042 NA 720 22,500
toluene....................................................... \J\ 0.223 \J\ 0.0019 NA 61 1,000
vanadium...................................................... 30.3 0.02 NA 87 338
xylenes....................................................... 1.23 \J\ 0.0058 NA 110 1,800
zinc.......................................................... 16,300 \JX\ 4.865 NA 900 11,300
cyanide (total)............................................... 18 \J\ 0.00831 NA 12 200
sulfide....................................................... 991 1.58 NA NA NA
fluoride...................................................... 498 1.75 NA 130 4,000
oil & grease.................................................. 331,000 NA NA NA NA
pH............................................................ 8.09-11.3 NA NA NA NA
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These levels represent the highest concentration of each constituent found in any sample and do not necessarily represent the levels found in a single
sample.
\1\ The allowable level in a TCLP leachate defaults to the characteristic level set forth in 40 CFR part 261, subpart C.
<--Denotes that the constituent was not detected at the quantitation level.
J--Estimated value.
X--Constituent was not detected in one of the two OWEP extractions. In the final OWEP calculation, the sample quantitation limit was used as a worst
case when a constituent was not detected in one of the extractions.
NA--The program did not calculate a delisting level for this constituent or the delisting level was significantly higher than the level expected to be
found in the waste.
[[Page 35557]]
GM submitted a signed statement certifying accuracy and
responsibility of the results. See 40 CFR 260.22(i)(12).
E. How Did EPA Evaluate the Risk of Delisting This Waste?
For this delisting determination, we assumed that the waste would
be disposed in a Subtitle D landfill and we considered transport of
waste constituents through ground water, surface water and air. We
evaluated GM's petitioned waste using the Agency's Delisting Risk
Assessment Software (DRAS) to predict the concentration of hazardous
constituents that might be released from the petitioned waste and to
determine if the waste would pose a threat. To predict the potential
for release to groundwater from landfilled wastes and subsequent routes
of exposure to a receptor, the DRAS uses dilution attenuation factors
derived from EPA's Composite Model for leachate migration with
Transformation Products. From a release to ground water, the DRAS
considers routes of exposure to a human receptor of ingestion of
contaminated ground water, inhalation from groundwater while showering
and dermal contact from groundwater while bathing. From a release to
surface water by erosion of waste from an open landfill into storm
water run-off, DRAS evaluates the exposure to a human receptor by fish
ingestion and ingestion of drinking water. From a release of waste
particles and volatile emissions to air from the surface of an open
landfill, DRAS considers routes of exposure of inhalation of volatile
constituents, inhalation of particles, and air deposition of particles
on residential soil and subsequent ingestion of the contaminated soil
by a child. For a detailed description of the DRAS program and
revisions see 65 FR 58015, September 27, 2000; 65 FR 59000, November 7,
2000; and 65 FR 75879, December 5, 2000.
At a target cancer risk of 1 x 10-6 and a target hazard
quotient of one, the DRAS program determined maximum allowable
concentrations for each constituent in both the waste and the leachate
at an annual waste volume of 2,000 cubic yards. However, since
naturally occurring levels of arsenic are often higher than allowable
levels set by the DRAS at a risk of 1 x 10-6, EPA set the
allowable level of leachable arsenic at a target cancer risk of 1 x
10-4, which corresponds to a concentration at the point of
exposure of approximately one half of the existing MCL. Arsenic is not
expected to be a major constituent of concern in this waste.
We used the maximum estimated annual waste volume and the maximum
reported total and leachate concentrations as inputs to estimate the
constituent concentrations in the ground water, soil, surface water or
air. If, using an appropriate analytical method, a constituent was not
detected in any sample or in the leachate of any sample, it was
considered not to be present in the waste.
F. What Did EPA Conclude About GM's Analysis?
The maximum reported leachate concentrations and the maximum
reported levels of the hazardous constituents found in this waste are
presented in the table above. The table also presents the maximum
allowable levels. The concentrations of all constituents in both the
waste and the leachate are below the allowable levels of concern
calculated by the DRAS program at the target risk levels. We therefore
conclude that GM's wastewater treatment sludge is not a substantial or
potential hazard to human health and the environment when disposed of
in a Subtitle D landfill.
We therefore propose to grant an exclusion for this waste. If this
exclusion is finalized, GM must dispose of this waste in a Subtitle D
landfill permitted or licensed by a state, and will remain obligated to
verify that the waste meets the allowable levels set forth here. The
Agency will no longer regulate the petitioned waste under 40 CFR parts
262 through 268 and the permitting standards of part 270.
IV. Conditions for Exclusion
A. When Would EPA Finalize the Proposed Delisting Exclusion?
HSWA specifically requires the EPA to provide notice and an
opportunity for comment before granting or denying a final exclusion.
Thus, EPA will not make a final decision or grant an exclusion until it
has addressed all timely public comments on today's proposal, including
any at public hearings.
Since this rule would reduce the existing requirements for persons
generating hazardous wastes, the regulated community does not need a
six-month period to come into compliance in accordance with sec. 3010
of RCRA as amended by HSWA.
B. How Will GM Manage the Waste If It Is Delisted?
If the petitioned waste is delisted, GM must dispose of it in a
Subtitle D landfill which is permitted, licensed, or registered by a
state to manage industrial waste.
C. What Are the Maximum Allowable Concentrations of Hazardous
Constituents in the Waste?
Concentrations measured in the TCLP (or OWEP, where appropriate)
extract of the waste of the following constituents must not exceed the
following levels (mg/l): antimony--0.66; arsenic--0.30; chromium--5;
lead--5; mercury--0.2; nickel--91; selenium--1; silver--5; thallium--
0.28; tin--720; zinc--900; fluoride--130; p-cresol--11; formaldehyde--
84; methylene chloride--0.29. The total concentrations in the waste of
the following constituents must not exceed the following levels (mg/
kg): formaldehyde--700; chromium--4,100; mercury--10.
D. How Frequently Must GM Test the Waste?
GM must analyze a representative sample of the WWTP filter press
sludge on a quarterly basis to demonstrate that the constituents of
concern in the petitioned waste do not exceed the levels of concern in
section IV.C above. GM must use methods with appropriate detection
levels with appropriate quality control procedures.
E. What Data Must GM Submit?
GM must submit the data obtained through quarterly verification
testing to U.S. EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60604,
upon the anniversary of the effective date of this exclusion. GM must
compile, summarize, and maintain on site 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).
F. What Happens if GM Fails To Meet the Conditions of the Exclusion?
If GM violates the terms and conditions established in the
exclusion, the Agency may start procedures to withdraw the exclusion.
If the verification testing of the waste does not meet the
delisting levels described in section IV.C above or other data
(including but not limited to leachate data or groundwater monitoring
data) relevant to the delisted waste indicates 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 the table in Section III.D. GM
must notify the Agency within 10 days of first possessing or being made
aware of the data. The exclusion will be suspended
[[Page 35558]]
and the waste managed as hazardous until GM has received written
approval from the Agency to continue the exclusion. GM may provide
sampling results which support the continuation of the delisting
exclusion.
The EPA has the authority under RCRA and the Administrative
Procedures Act, 5 U.S.C. 551 (1978) et seq. to reopen a delisting
decision if we receive new information indicating that the conditions
of this exclusion have been violated, or are otherwise not being met.
G. What Must GM Do if the Process Changes?
If GM significantly changes the manufacturing or treatment process
or the chemicals used in the manufacturing or treatment process, GM may
not handle the WWTP filter press sludge generated from the new process
under this exclusion until it has demonstrated to the EPA that the
waste meets the levels set in section IV.C and that no new hazardous
constituents listed in Appendix VIII of 40 CFR part 261 have been
introduced. GM must manage wastes generated after the process change as
hazardous waste until GM has received written notice from EPA that the
delisting is reinstated.
V. Regulatory Impact
A. How Would This Aaction 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 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.
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 manages the waste in any state with delisting
authorization, GM must obtain delisting authorization from that state
before it can manage the waste as nonhazardous in that state.
B. Is an Assessment of Costs and Benefits Required?
Under Executive Order 12866, EPA must conduct an ``assessment of
the potential costs and benefits'' for all ``significant'' regulatory
actions. The proposal to grant an exclusion is not significant, since
its effect, if promulgated, would be to reduce the overall costs and
economic impact of EPA's hazardous waste management regulations. This
reduction would be achieved by excluding waste generated at a specific
facility from EPA's lists of hazardous wastes, thus enabling a facility
to manage its waste as nonhazardous.
Because there is no additional impact from today's proposed rule,
this proposal would not be a significant regulation, and no cost/
benefit assessment is required. 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
Under 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 which describes the impact of
the rule on small entities (that is, 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 small entities.
This rule, if promulgated, will not have an adverse economic impact
on small entities since its effect would be to reduce the overall costs
of EPA's hazardous waste regulations and would be limited to one
facility. Accordingly, the Agency certifies that this proposed
regulation, if promulgated, 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 proposed rule have been approved by the Office of Management
and Budget (OMB) under the provisions of the Paperwork Reduction Act of
1980 (Public Law 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), Public Law 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, EPA 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.
The EPA finds that today's delisting decision is deregulatory in
nature and does not impose any enforceable duty on any state, local, or
tribal governments or the private sector. In addition, the proposed
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. 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
[[Page 35559]]
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.
X. Executive Order 13045
The Executive Order 13045 is entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997). This order applies to any rule that EPA determines (1) is
economically significant as defined under Executive Order 12866, and
(2) the environmental health or safety risk addressed by the rule has a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. This
proposed rule is not subject to Executive Order 13045 because this is
not an economically significant regulatory action as defined by
Executive Order 12866.
XI. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly affects or uniquely affects
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments.
If the mandate is unfunded, EPA must provide to the Office
Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation.
In addition, Executive Order 13084 requires EPA to develop an
effective process permitting elected and other representatives of
Indian tribal governments ``meaningful and timely input'' in the
development of regulatory policies on matters that significantly or
uniquely affect their communities. This action does not involve or
impose any requirements that affect Indian Tribes. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
XII. National Technology Transfer and Advancement Act
Under section 12(d) if the National Technology Transfer and
Advancement Act, the Agency is directed to use voluntary consensus
standards in its regulatory activities unless doing so would be
inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (for example,
materials specifications, test methods, sampling procedures, business
practices, etc.) that are developed or adopted by voluntary consensus
standard bodies. Where EPA does not use available and potentially
applicable voluntary consensus standards, the Act requires that Agency
to provide Congress, through the OMB, an explanation of the reasons for
not using such standards.
This rule does not establish any new technical standards, and thus
the Agency has no need to consider the use of voluntary consensus
standards in developing this final rule.
List of Subjects in 40 CFR Part 261
Hazardous waste, Recycling, and Reporting and recordkeeping
requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: June 16, 2004.
Margaret M. Guerriero,
Director, Waste, Pesticides and Toxics Division.
For the reasons set out in the preamble, 40 CFR part 261 is
proposed to be 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 to part 261 it is proposed to 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
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
General Motors Corporation............ Lordstown, Ohio....................... Waste water treatment plant
sludge, F019, that is generated
at General Motors Corporation's
Lordstown facility 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--
0.2; nickel--91; 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.
[[Page 35560]]
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.
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. 04-14460 Filed 6-24-04; 8:45 am]
BILLING CODE 6560-50-P