[Federal Register Volume 72, Number 11 (Thursday, January 18, 2007)]
[Proposed Rules]
[Pages 2219-2235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-640]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 261 and 302
[EPA-HQ-RCRA-2006-0984, FRL-8270-7]
RIN 2050-AG15
Hazardous Waste Management System: Identification and Listing of
Hazardous Waste; Amendment to Hazardous Waste Code F019
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
amend today the list of hazardous wastes from non-specific sources
(called F-wastes) under 40 CFR 261.31 by modifying the scope of the EPA
Hazardous Waste No. F019 (Wastewater treatment sludges from the
chemical conversion coating of aluminum except from zirconium
phosphating in aluminum can washing when such phosphating is an
exclusive conversion coating process). The Agency would be amending the
F019 listing to exempt wastewater treatment sludges from zinc
phosphating, when such phosphating is used in the motor vehicle
manufacturing process. EPA is proposing two options that would require
that the wastes be disposed in a landfill unit that meets certain liner
design criteria. These proposed modifications to the F019 listing would
not affect any other wastewater treatment sludges either from the
chemical conversion coating of aluminum, or from other industrial
sources. Additionally, this action would amend the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) list
of Hazardous Substances and Reportable Quantities under 40 CFR 302.4 so
that the F019 listing description is consistent with the proposed
amendment to F019 under 40 CFR 261.31.
DATES: Comments must be received on or before March 19, 2007. Under the
Paperwork Reduction Act, comments on the information collection
provisions must be received by OMB on or before February 20, 2007.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2006-0984 by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
E-mail: Comments may be sent by electronic mail (e-mail)
to [email protected], Attention Docket ID No. EPA-HQ-RCRA-
2006-0984.
Mail: Comments may be submitted by mail to: OSWER Docket,
Office of Solid Waste, U.S. Environmental Protection Agency, Mailcode:
5305T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, Attention
Docket ID No. EPA-HQ-RCRA-2006-0984. Please include a total of three
copies of your comments. In addition, please mail a copy of your
comments on the information collection provisions to the Office of
Information and Regulatory Affairs, Office of Management and Budget
(OMB), Attn: Desk Officer for EPA, 725 17th Street, NW., Washington, DC
20503.
Hand Delivery: Deliver your comments to: EPA Docket
Center, Public Reading Room, Room 3334, EPA West Building, 1301
Constitution Avenue, NW., Washington, DC 20460, Attention Docket ID No.
RCRA-2006-0984. Such deliveries are only accepted during the Docket's
normal hours of operation (8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays) and special arrangements should be
made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2006-0984. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or e-mail.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov
your e-mail address will be automatically captured and included as a
part of the comment that is placed in the public docket and made
available on the Internet. If you submit an electronic comment, EPA
recommends that you include your name and other contact information in
the body of your comment and with any disk or CD ROM you submit. If EPA
cannot read your comment due to technical difficulties and cannot
contact you for clarification, EPA may not be able to consider your
comment. Electronic files should avoid the use of special characters,
any form of encryption, and be free of any defects
[[Page 2220]]
or viruses. For additional information about EPA's public docket visit
the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the OSWER Docket in the EPA
Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Avenue,
NW., Washington, DC 20460. The Public Meeting Room is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the OSWER Docket and the Public Reading Room is
(202) 566-1744.
FOR FURTHER INFORMATION CONTACT: Mr. James Michael of the Office of
Solid Waste (5304W), U.S. Environmental Protection Agency, 1200
Pennsylvania Avenue, NW., Washington, DC 20460, (E-mail address and
telephone number: [email protected], (703) 308-8610). For
information on the procedures for submitting CBI data, contact Ms.
LaShan Haynes (5305W), U.S. Environmental Protection Agency, 1200
Pennsylvania Avenue, NW., Washington, DC 20460, (E-mail address and
telephone number: [email protected], (703) 605-0516).
SUPPLEMENTARY INFORMATION:
I. General Information
A. Who is Potentially Affected by This Proposed Rule?
This regulation could directly affect businesses that generate
certain wastes from the manufacturing of motor vehicles in the (1)
automobile manufacturing industry and (2) light truck/utility vehicle
manufacturing industry (NAICS codes 336111 and 336112, respectively).
Other motor vehicle manufacturing industries (e.g., heavy duty truck or
motor home manufacturing (NAICS code 336120)) are not affected by this
rule. The wastes affected by this proposed rule are wastewater
treatment sludges generated from the chemical conversion coating of
aluminum using a zinc phosphating process and are currently listed as
EPA Hazardous Waste No. F019 (see 40 CFR 261.31). If the rule is
promulgated in either of the two ways it is proposed today, these
wastes would not be hazardous waste, provided the wastes are disposed
in a landfill unit that meets certain liner design criteria. Impacts on
potentially affected entities are summarized in Section VI of this
Preamble. The document, ``Estimate of Potential Economic Impacts for
USEPA's Proposed Amendment to RCRA Hazardous Wastecode F019 to Exclude
Motor Vehicle Manufacturing Industries,'' presents an analysis of
potentially affected entities (hereinafter, referred to as the
Economics Background Document). This document is available in the
docket established in support of today's proposed rule. Entities
potentially affected by this action are at least 14 current generators
within the motor vehicle manufacturing industry consisting of six auto
and eight light truck/utility vehicle plants and up to 39 other
facilities in these two industries that may begin applying aluminum
parts and could potentially generate F019 waste.
To determine whether your facility is affected by this action, you
should examine 40 CFR Parts 260 and 261 carefully, along with the
proposed regulatory language amending Chapter I of the Code of Federal
Regulations (CFR). This language is found at the end of this Federal
Register notice. If you have questions regarding the applicability of
this action to a particular entity, consult the person listed in the
preceding section entitled FOR FURTHER INFORMATION CONTACT.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
www.regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information submitted on
a disk or CD ROM that you mail to EPA, mark the outside of the disk or
CD ROM as CBI and then identify electronically within the disk or CD
ROM the specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
the procedures set forth in 40 CFR part 2.
2. Tips for Preparing your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternative and
substitute language for your requested changes.
Describe any assumptions that you used and provide any
technical information and/or data that you used.
If you estimate potential burden or costs, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
Preamble Outline
I. Legal Authority
II. List of Acronyms
III. Overview
Purpose of This Proposed Rule
IV. Background
A. How EPA Regulates Hazardous Waste
B. Overview of the F019 Listing
C. Regulatory History of F006/F019
D. Description of the Zinc Phosphating-Conversion Coating
Process at Motor Vehicle Manufacturing Plants
E. Amount of F019 Sludge Generated by the Motor Vehicle
Manufacturing Industry
F. Composition of the F019 Sludge
G. How F019 Sludge Is Currently Managed
V. Approach Used in This Proposed Listing Amendment
A. Concentration-Based Approach vs. Disposal in a Landfill
Meeting Certain Liner Design Criteria
B. Overview of the Risk Assessment
1. EPA's Approach To Assessing Potential Risks to Human Health
and the Environment
2. How EPA Chose Constituents of Potential Concern for
Evaluation
3. Evaluation of Potential Human Health and Environmental Risks
4. Uncertainty in the Risk Assessment Results
VI. Implementation of the F019 Proposed Rule
A. Land Disposal Conditions
1. How Generators Document Compliance With the Landfill
Condition
2. Consequences of Failing To Meet the Disposal Conditions and
Recordkeeping Requirements
3. Land Disposal Restrictions
B. Interrelationships Between Proposed Rule and Current F019
Delistings
VII. State Authorization
VIII. Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) Designation and List of Hazardous Substances
and Reportable Quantities
IX. Relationship to Other Rules--Clean Water Act
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X. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. Legal Authority
EPA proposes these regulations under the authority of Sections 2002
and 3001(b) and (f), 3004(d)-(m) and 3007(a) of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act
(RCRA), as amended, most importantly by the Hazardous and Solid Waste
Amendments of 1984 (HSWA), 42 U.S.C. 6912, 6921(b), 6924(d)-(m) and
6927(a). These statutes combined are commonly referred to as the
``Resource Conservation and Recovery Act'' (RCRA) and will be referred
to as such for the remainder of this Notice.
Because EPA is modifying the national listing of F019, EPA believes
the appropriate statutory authority is that found in section 3001 (b),
rather than the authority in section 3001 (f). RCRA section 3001 (f)
pertains solely to the exclusion of a waste generated at a particular
facility in response to a petition. Accordingly, neither the procedures
nor the standards established in that provision, or in EPA's
regulations at 40 CFR 260.22 are applicable to this rulemaking.
Section 102(a) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9602(a) is
the authority under which the CERCLA aspects of this rule are
promulgated.
II. List of Acronyms
Acronyms
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Acronym Definition
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BRS...................... Biennial Reporting System
CBI...................... Confidential Business Information
CERCLA................... Comprehensive Environmental Response,
Compensation, and Liability Act
CFR...................... Code of Federal Regulations
COPCs.................... Constituents of Potential Concern
CWA...................... Clean Water Act
DAF...................... Dilution and Attenuation Factor
DRAS..................... Delisting Risk Assessment Software
EPA...................... Environmental Protection Agency
ICR...................... Information Collection Request
IWEM..................... Industrial Waste Management Evaluation Model
LDR...................... Land Disposal Restrictions
MCL...................... Maximum Contamination Limit
NAICS.................... North American Industrial Classification
System
NTTAA.................... National Technology and Transfer Act
OMB...................... Office of Management and Budget
OSWER.................... Office of Solid Waste and Emergency Response
PRA...................... Paperwork Reduction Act
POTW..................... Publicly Owned Treatment Works ppm parts per
million
RCRA..................... Resource Conservation and Recovery Act
RFA...................... Regulatory Flexibility Act
RQ....................... Reportable Quantity
SIC...................... Standard Industrial Classification
TRI...................... Toxics Release Inventory
UMRA..................... Unfunded Mandates Reform Act
WWT...................... Wastewater Treatment
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III. Overview
Purpose of the Proposed Rule
The Agency is proposing to amend the list of hazardous wastes from
non-specific sources under 40 CFR 261.31 by modifying the scope of EPA
Hazardous Waste No. F019, which currently reads: ``Wastewater treatment
sludges from the chemical conversion coating of aluminum except from
zirconium phosphating in aluminum can washing when such phosphating is
an exclusive conversion coating process.'' The Agency is proposing to
amend the F019 listing to exempt the wastewater treatment sludge
generated from zinc phosphating, when zinc phosphating is used in the
automobile assembly process and provided the waste is disposed in a
landfill unit subject to certain liner design criteria. Specifically,
under the two options proposed today, these wastes would not be
hazardous if they are disposed in a landfill unit subject to, or
otherwise meeting, certain liner requirements. Wastes that meet this
condition would be exempted from the listing from their point of
generation, and would not be subject to any RCRA Subtitle C management
requirements for generation, storage, transport, treatment, or disposal
(including the land disposal restrictions). Generators of such wastes
may be exempted from the F019 listing if they meet the condition for
exemption, and they maintain adequate records. EPA is proposing to
require generators to keep records showing that they used a landfill
that meets the design requirements.
The motor vehicle manufacturing industry incorporates aluminum into
vehicle parts and bodies for the purpose of making them lighter-weight
and thus more capable of increasing gas mileage. However, when aluminum
is incorporated into the body of an automobile, the conversion coating
step in the manufacturing process results in the generation of a RCRA-
listed hazardous waste (F019) in the form of a wastewater treatment
sludge from the
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conversion coating process, while the wastewaters from the conversion
coating of steel in the same industry do not generate a listed
hazardous waste. By removing the regulatory controls under RCRA, EPA is
facilitating the use of aluminum in motor vehicles. The Agency believes
that the incorporation of aluminum will be advantageous to the
environment since lighter-weight vehicles are capable of achieving
increased fuel economy and associated decreased exhaust air emissions.
IV. Background
A. How EPA Regulates Hazardous Waste
EPA's regulations establish two ways of identifying solid wastes as
hazardous under RCRA. A waste may be considered hazardous if it
exhibits certain hazardous properties (``characteristics'') or if it is
included on a specific list of wastes EPA has determined are hazardous
(``listing'' a waste as hazardous) because the Agency found them to
pose substantial present or potential hazards to human health or the
environment. EPA's regulations in the Code of Federal Regulations (40
CFR) define four hazardous waste characteristic properties:
ignitability, corrosivity, reactivity, and toxicity (see 40 CFR 261.21-
261.24). As a generator, you must determine whether or not a waste
exhibits any of these characteristics by testing, or by using your
knowledge of the process that produced the waste (see Sec. 262.11(c)).
EPA may also conduct a more specific assessment of a waste or
category of wastes and ``list'' them if they meet criteria set out in
40 CFR 261.11. Under the third criterion, identified in 40 CFR 261.11
(a)(3), the Agency may list a waste as hazardous if it contains
hazardous constituents identified in 40 CFR part 261, Appendix VIII,
and if EPA concludes that ``the waste is capable of posing a
substantial present or potential hazard to human health or the
environment when improperly treated, stored, transported, or disposed
of, or otherwise managed.'' EPA places chemicals on the list of
hazardous constituents in Appendix VIII ``if they have been shown in
scientific studies to have toxic, carcinogenic, mutagenic or
teratogenic effects on humans or other life forms.'' See 40 CFR
261.11(a)(3). When listing a waste, the Agency also adds any hazardous
constituents that serve as the basis for listing the waste to 40 CFR
part 261, Appendix VII.
The regulations at 40 CFR 261.31 through 261.33 contain the various
hazardous wastes the Agency has listed to date. Section 261.31 lists
waste generated from non-specific sources, known as ``F-wastes,'' and
contain wastes that are usually generated by various industries or
types of facilities. Today's proposed regulations would revise the
listing for one of these wastes, F019.
If a waste exhibits a hazardous characteristic, or is listed as a
hazardous waste, then it is subject to federal requirements under RCRA.
Facilities that generate, transport, treat, store or dispose of such
waste must meet hazardous waste management requirements, including the
need to obtain permits to operate, are commonly referred to as
``Subtitle C'' facilities. (Subtitle C is the subsection of RCRA that
governs the management of hazardous waste. EPA standards and procedural
regulations implementing Subtitle C are found generally at 40 CFR parts
260 through 273.)
The RCRA regulations provide a form of relief for listed wastes
through a site-specific process known as ``delisting.'' The regulations
governing the delisting process are given at 40 CFR 260.20 and 260.22.
These regulations set out a procedure and standards by which persons
may demonstrate that a specific waste from a particular generating
facility should not be regulated as a listed hazardous waste under
Subtitle C of RCRA. Under these regulations, any person may petition
EPA to remove its waste from regulation by excluding it from the lists
of hazardous wastes contained in Part 261. EPA has granted delistings
to various facilities that generate or manage F019 wastes, including
motor vehicle manufacturing plants. (See Section IV.D.) As a condition
to some of the granted delistings, the facility generating that waste
must periodically sample and analyze the waste for the presence and
quantity of specific chemical constituents of concern. This periodic
sampling and analysis is called ``verification sampling.'' In some
cases, facilities submit the results of the verification sampling and
analysis to EPA to ensure that the waste's continuing status of
nonhazardous is appropriate.
A solid waste, that is determined not to be a listed and/or
characteristic hazardous waste, may be managed at ``Subtitle D''
facilities. These facilities are approved by state and local
governments and generally impose less stringent requirements on
management of wastes than Subtitle C facilities. Subtitle D is the
statutory designation for that part of RCRA that deals with disposal of
nonhazardous solid waste. EPA regulations affecting Subtitle D
facilities are found at 40 CFR parts 240 through 247, and 255 through
258. Regulations for Subtitle D landfills that accept municipal waste
(``municipal solid waste landfills'') are in 40 CFR part 258.
B. Overview of F019 Listing
Hazardous Waste No. F019 is defined as ``Wastewater treatment
sludges from the chemical conversion coating of aluminum except from
zirconium phosphating in aluminum can washing when such phosphating is
an exclusive conversion coating process.'' The hazardous constituents
for which the waste is listed are hexavalent chromium and cyanide
(complexed). The F019 wastewater treatment sludge is generated from the
rinses and overflows from the chemical conversion coating of aluminum.
Chemical conversion coating processes involve the application of a
coating to a previously deposited metal or a base metal for increased
corrosion protection, lubricity, preparation of the surface for
additional coatings, or formulation of a special surface appearance.
This manufacturing operation includes chromating, phosphating, metal
coloring and immersion plating.
Phosphate conversion coatings produce a mildly protective layer of
insoluble crystalline phosphate on the surface of a metal. Phosphate
coatings are used to provide a more suitable base for paints and other
inorganic coatings, to condition the surfaces for cold forming
operations by providing a base for drawing compounds and lubricants,
and to impart corrosion resistance to the metal surface by the coating
itself or by providing a suitable base for rust-preventive oils or
waxes. Phosphate conversion coatings are formed by the immersion of
iron, steel or zinc plated steel in a dilute solution of phosphoric
acid plus other reagents. Phosphate conversion coatings can also
involve spray-on applications.
C. Regulatory History of F006/F019
On May 19, 1980, EPA published an interim final rule listing
``wastewater treatment sludges from electroplating operations'' as EPA
Hazardous Waste No. F006. See 40 CFR 261.31 (45 FR 33112). The
hazardous constituents for which this waste was listed are cadmium,
hexavalent chromium, nickel and complexed cyanide. In response to
comments on the interim final regulation, the listing was modified on
November 12, 1980 (45 FR 74884) to read as follows: ``wastewater
treatment sludges from electroplating operations except from the
following processes: (1) Sulfuric acid anodizing of aluminum; (2) tin
plating on carbon steel; (3) zinc
[[Page 2223]]
plating (segregated basis) on carbon steel; (4) aluminum or zinc-
aluminum plating on carbon steel; (5) cleaning/stripping associated
with tin, zinc and aluminum plating on carbon steel; and, (6) chemical
etching and milling of aluminum.''
Additionally, in response to other comments, the Agency separated
``wastewater treatment sludges from the chemical conversion coating of
aluminum'' from the F006 listing and listed them as F019. Commenters
had argued that these sludges should not be listed as F006 because they
do not contain all four of the constituents for which F006 was listed.
That is, commenters contended that these wastes do not typically
contain cadmium and nickel. EPA agreed that these wastes did not
typically contain cadmium and nickel, but maintained that, since the
wastes contain hexavalent chromium and complexed cyanides, they should
nevertheless be regulated. The Agency, therefore, listed them as
hazardous waste, F019, and only listed hexavalent chromium and
complexed cyanides as the constituents of concern for these wastes in
Appendix VII of Part 261.\1\
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\1\ Note that aluminum conversion coating using the zinc
phosphating process utilizes nickel, as noted in section IV.D.;
thus, nickel is a potential constituent of concern in the waste at
issue in this proposed amendment.
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On December 2, 1986 (51 FR 43350), EPA issued an interpretive rule
stating that the Agency had re-evaluated its previous interpretations
of the scope of the application of F006 and had determined that those
interpretations were overly broad. As a result, the Agency stated that
the following processes were not included in the F006 listing: chemical
conversion coating, electroless plating and printed circuit board
manufacturing. EPA further clarified that the F006 listing includes
wastewater treatment sludges from: (1) Common and precious metals
electroplating, except tin, zinc (segregated basis), aluminum and zinc
plating on carbon steel; (2) anodizing, except sulfuric acid anodizing
of aluminum; (3) chemical etching and milling, except when performed on
aluminum; and, (4) cleaning and stripping, except when associated with
tin, zinc, and aluminum plating on carbon steel. While this
interpretation removed chemical conversion coating from the scope of
F006, it did not affect the F019 listing. That is, wastewater treatment
sludges from the chemical conversion coating of aluminum continued to
be regulated as F019.
Through a number of delistings and the Agency's evaluation for
today's proposal, EPA has since learned that one of the chemical
conversion coating operations--zinc phosphating--may not result in the
generation of a hazardous wastewater treatment sludge. (See discussion
below describing the zinc phosphating process.) Therefore, EPA is
proposing today to amend the F019 listing to exempt the wastewater
treatment sludges from zinc phosphating, when such phosphating is used
at motor vehicle manufacturing plants, provided certain disposal
conditions are met.
EPA is not reopening any aspect of the F019 listing other than
those specifically identified in this proposal, and will not respond to
any comments that address issues beyond the specific proposals outlined
in this notice.
D. Description of the Zinc Phosphating-Conversion Coating Process at
Motor Vehicle Manufacturing Plants
The zinc phosphating process at motor vehicle manufacturing plants
is a multiple stage immersion process. The number of stages in the zinc
phosphating process may vary from plant to plant, but they generally
involve: cleaning and surface preparation, rinsing, conversion coating
and rinsing.
Cleaning and surface preparation: The purpose of this stage is to
remove the physical contaminants from the surface of the assembled
vehicle body so that the conversion coating will be applied evenly and
continuously across the metal surfaces. Typical surface contaminants
are metal working oil, rust protection oil, dirt and oxides from
corrosion. Since the surface of the metal becomes part of the coating,
this stage is particularly important. Improper processing can result in
blisters or poor appearance in the metal finish. Cleaning and surface
preparation is typically done first with water and surfactants followed
by an alkaline solution. The alkaline solution removes microscopic
layers of metal to ensure that metal is exposed and available for the
chemical conversion reactions.
Rinsing: The rinse stage stops the metal removal by washing away
the alkaline solution. Rinsing is done with water followed by an
alkaline rinse conditioner, which prepares the metal surface for the
conversion coating process.
Conversion coating: During this stage, the conversion coating
process converts the metal surface of the assembled vehicle bodies by
dissolving the metal and forming ``sites'' into which the zinc
phosphate coating is deposited. The zinc phosphate coating provides a
stable, corrosion resistant base for painting. The phosphated
conversion coating bath contains phosphoric acid with certain metals
(zinc and manganese) and accelerators such as nickel. Fluoride is added
to control crystal structure and maintain the composition of the bath.
Hexavalent chromium and complexed cyanides are not used in this zinc
phosphating conversion coating process.\2\
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\2\ The analytical data for sludge samples show the presence of
chromium and cyanide. Chromium appears to arise, in part, from the
use of trivalent chromium in ``sealing'' during the rinsing step in
the process; the source of trace levels of cyanide is not clear.
However, levels of hexavalent chromium and cyanide were not present
at levels of concern based on EPA's risk assessment (i.e., the
``Technical Support Document: Assessment of Potential Risks from
Managing F019 Waste from Motor Vehicle Manufacturing Industry'' in
the docket for this proposed rulemaking); also see Section V.B.
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Rinsing: Once the conversion coating process is completed, the
assembled vehicle bodies go through a water rinse to stop the
conversion coating process and to remove any excess salts from the
metal surfaces. A final acidic rinse is then used to seal the pores in
the zinc phopshate coating and to remove any excess materials from the
metal surfaces. During this final rinse, a sealant is added for
additional corrosion protection. From here, the assembled vehicle
bodies then proceed to the painting process.
E. Amount of F019 Sludge Generated by the Motor Vehicle Manufacturing
Industry
As of 2003, 11 automobile manufacturing plants (NAICS 336111)
generated a total of 5,300 tons per year of F019 sludge ranging between
177 and 1,249 tons per year per plant (average of 477 tons per year per
plant), and 12 light truck/utility vehicle manufacturing plants (NAICS
336112) generated a total of 9,300 tons per year of F019 sludge ranging
between 112 to 1,620 tons per year per plant (average of 772 tons per
year per plant). As of year-end 2005, EPA regional offices have
delisted 47 former F019 generators in 19 industries, including 35,000
cubic yards (i.e., about 35,000 tons) per year of F019 sludge formerly
generated by 15 motor vehicle manufacturing plants. Historically,
between 1995 and 2003, the annual count of F019 generators in the motor
vehicle manufacturing industries affected by this proposed rule has
fluctuated between 10 to 22 generators, and between 8,000 to 13,000
tons per year of F019 sludge generated.
F. Composition of the F019 Sludge
The F019 sludge from motor vehicle manufacturers is generated from
dewatering of wastewater, typically
[[Page 2224]]
yielding a pressed ``filter cake'' with a solids content that ranges
between 30% and 50% by weight. Reviewing the Material Safety Data
Sheets for the chemicals used in, and prior to, the conversion coating
process indicates that a wide range of elements can be expected to be
present in the wastewaters and the sludges resulting from wastewater
treatment.
The specific chemical constituents that are found in motor vehicle
manufacturers' F019 sludge, listed in order of frequency found, are
nickel, fluoride, zinc, barium, copper and chromium (all found in 100%
of a selected number of samples reviewed); tin, formaldehyde, lead,
cobalt, mercury, sulfide and xylenes (found in 70-99% of a selected
number of samples reviewed); acrylamide, vanadium, arsenic, cyanide,
hexavalent chromium, and ethylbenzene (found in 50-69% of a selected
number of samples reviewed).
G. How F019 Sludge Is Currently Managed
According to data from the 2003 RCRA Hazardous Waste Biennial
Report (http://www.epa.gov/enviro/html/brs/brs_query.html), F019
sludges generated by motor vehicle manufacturers are disposed in RCRA
Subtitle C regulated facilities, after de-watering, stabilization and/
or other treatment. Although two of the 17 generators in the motor
vehicle manufacturing industry reportedly disposed their F019 sludges
onsite (about 300 tons/year), all of the 22 automobile and light truck/
utility vehicle manufacturing plants in 2003 reported managing F019
sludges offsite at RCRA Subtitle C regulated landfills in six states
(IL, LA, MI, OK, PA, and SC), located at transport distances of 19 to
1,500 miles (average 400 miles).
EPA recognizes that several recent rulemakings related to RCRA-
listed hazardous wastes have proposed conditional exemptions from the
regulatory definition of ``solid waste'' when such wastes, by virtue of
their being recycled, are treated more as commodities than as wastes.
For example, see 68 FR 61588, October 28, 2005. The Agency is not aware
of any recycling or reclamation of F019 sludges; therefore, EPA
believes that current market conditions do not support the recycling of
F019 waste for the purposes of recovering the metal content of such
waste. EPA requests comment on whether our understanding is accurate
and whether recycling of F019 waste is economically feasible under
today's market conditions. If recycling of F019 wastes becomes
economically feasible or beneficial in the future, the Agency will
consider its options for how to address this, including through a
subsequent rulemaking, such as the ongoing rulemaking related to the
definition of solid waste.
V. Approach Used in This Proposed Listing Amendment
A. Concentration-Based Approach vs. Disposal in a Landfill Meeting
Certain Liner Design Criteria
On April 22, 2005, EPA, through a posting on EPA's website,
indicated that the Agency was in the process of considering a possible
amendment to the F019 hazardous waste listing under RCRA. This possible
amendment would have exempted waste water treatment sludges from the
zinc phosphating processes at automotive assembly plants in the motor
vehicle manufacturing industry when concentrations of constituents of
concern in those wastes fell below risk-based exemption levels. On the
F019 Web page, EPA provided waste sampling data and the methodology
that the Agency would use in considering the revision of the F019
listing using a concentration-based approach. Interested parties were
invited to review and comment on the information collected to support
the possible amendment that EPA was considering. The comment period for
the web posting closed on June 1, 2005. Twelve comments were received.
All commenters supported a revision to the F019 listing, although some
expressed concern regarding testing conditions for potential chemicals
of concern in the waste and how the concentration-based exemption would
be structured. Copies of these comments are included in the docket for
today's proposed rulemaking.
Below in Section V. B., EPA presents a detailed discussion of the
Agency's approach in assessing the potential risks to human health and
the environment and how EPA chose the potential constituents of concern
that could be used in the concentration-based approach. However, as the
Agency conducted the risk analysis and developed the implementation
schemes to go with this approach, several issues arose. First, a
variety of issues arose related to establishing precise exemption
concentrations for the waste, including: the amount of waste ultimately
disposed in the modeled landfill (which is dependent on annual volume
and years of disposal); which toxicity benchmarks to use (e.g.,
drinking water standards or other health-based values); and exposure
assumptions built into the Delisting Risk Assessment Software (DRAS)
model (e.g., groundwater consumption for different age groups). (See
Section V. B. for a more detailed discussion on the documentation of
the DRAS model.)
Second, in order to accommodate the wide range in the volumes of
F019 wastewater treatment sludges generated at the different automotive
assembly plants, the Agency would need to develop different exemption
levels for each of the constituents of concern for the various annual
waste volumes (e.g., 500 cubic yards to 5000 cubic yards per year at
500 cubic yard intervals). In order to ensure compliance with the
concentration-based approach, the automotive assembly plants would need
to maintain detailed records on the amount of waste generated and
implement a representative sampling and analysis program to ensure that
they met the exemption levels for the volume of waste each facility
generated annually. Furthermore, two constituents were identified that
presented potential risks to human health (arsenic and nickel) in an
unlined landfill scenario as modeled by DRAS version 2. Rather than
attempt to define precise exemption levels for constituents of concern,
the Agency believes that it is simpler to require disposal in a
landfill that is subject to certain liner design requirements. The
Agency is proposing two options for the liner design requirements.
Under option one, EPA is proposing that the landfill unit meet the
liner requirements for municipal landfills in 40 CFR 258.40 or other
liner designs containing a composite liner.\3\ Under option two, the
Agency is proposing to allow disposal in state-permitted municipal
solid waste landfills (subject to regulations in 40 CFR 258) and state-
permitted industrial solid waste landfills (subject to Federal
regulations at 40 CFR 257), provided the landfill unit includes at
least a single clay liner,\4\ and also in permitted hazardous waste
landfills. This second option could ease implementation,
[[Page 2225]]
because the generator could rely on the state permitting agency to
assure proper liner design. The Agency is seeking comment on this
second approach, because the modeling results indicate that units with
a less stringent liner design may also reduce the risk from the
hazardous constituents of concern to acceptable levels.
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\3\ As noted in Section V.B. below, the Federal regulations for
municipal solid waste landfills require that new units (and lateral
expansions of existing units) meet design criteria for composite
liners and leachate collection systems (or other approved
performance standards). A composite liner as defined in Sec. 258.40
consists of a combination of a synthetic liner and an underlying
compacted soil/clay liner. Disposal in hazardous waste landfills
would also be allowed, because the regulations in Sec. 264.301 and
Sec. 265.301 include composite liners.
\4\ For this option, EPA assumes that single clay liners, even
in older landfills, would meet the typical construction standards,
i.e., the clay liner would have a low hydraulic conductivity (i.e.,
1 x 10-7 cm/sec) and be of sufficient thickness to ensure
structural stability (i.e., 2 to 3 feet of compacted clay). EPA
seeks comment on this assumption.
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As discussed further below, EPA found that disposal of the waste
under evaluation in such lined landfills would ensure protection of
human health and the environment, without the need for testing and
tracking of waste volume. EPA believes that the proposed approaches
outlined in today's notice would be easier and less costly to implement
than the concentration-based approach, but provides at least the same
level of protection for human health and the environment.
B. Overview of the Risk Assessment
1. EPA's Approach To Assessing Potential Risks to Human Health and the
Environment
Today's action addresses a specific type of industrial sludge:
sludge generated from the management of wastewaters generated at motor
vehicle manufacturing (assembly) facilities. In general, industrial
wastewater treatment sludges consist of suspended solids removed from
wastewaters during treatment, which may involve various steps. As
described in one delisting petition, for example, the treatment steps
include: grit separation, pH adjustment to remove metals, addition of a
coagulant, clarification to generate a dilute sludge, and dewatering of
the sludge and grit solids via filter presses.\5\
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\5\ See General Motors Corporation Oklahoma City Assembly Plant
Delisting Petition for F019 Wastewater Treatment Plant Sludge Filter
Cake, Section 3, Facility Operations in the docket.
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F019 sludges generated by the motor vehicle manufacturing
industries are currently managed by onsite dewatering, followed by
truck or rail shipment to offsite RCRA-permitted hazardous waste
landfills. Because today's action proposes to allow disposal of the
wastewater treatment sludge in landfills subject to, or meeting,
certain design criteria, the Agency's risk assessment involved
evaluating risks to human health and the environment from this landfill
disposal scenario. (See the ``Technical Support Document: Assessment of
Potential Risks from Managing F019 Waste from the Motor Vehicle
Manufacturing Industry'' in the docket for this proposed rulemaking for
a detailed description of the analysis that the Agency performed,
hereinafter, referred to as the Technical Support Document.) EPA
initially evaluated the potential risks posed by a hypothetical annual
quantity of F019 waste that is disposed of in an unlined nonhazardous
waste landfill, and then evaluated potential risks from disposal in
landfills that use different liner technologies. The human health and
environmental risk evaluation uses several environmental fate,
transport, and exposure/risk models: Delisting Risk Assessment Software
(DRAS), version 2.0,\6\ Tier 1 of the Industrial Waste Management
Evaluation Model (IWEM),\7\ and EPA's Composite Model for Leachate
Migration with Transformation Products (EPACMTP).\8\ These models have
all been peer reviewed; see the Technical Support Document for a
detailed description of the use of these models and their peer review.
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\6\ ``RCRA Delisting Technical Support Document''. EPA906-D-98-
001. Interim Final. U.S. Environmental Protection Agency, Office of
Solid Waste and Emergency Response, Office of Solid Waste. Prepared
by U.S. Environmental Protection Agency, Region 6, Dallas, TX April
2002.
\7\ ``Industrial Waste Management Evaluation Model (IWEM) User's
Guide.'' EPA530-R-02-013. U.S. Environmental Protection Agency,
Office of Solid Waste and Emergency Response, Office of Solid Waste.
Washington, D.C. August 2002, and ``Industrial Waste Management
Evaluation Model (IWEM) Technical Background Document.'' EPA530-R-
02-012. U.S. Environmental Protection Agency, Office of Solid Waste
and Emergency Response, Office of Solid Waste. Washington, DC August
2002.
\8\ ``EPA's Composite Model for Leachate Migration with
Transformation Products EPACMTP: User's Guide.'' U.S. Environmental
Protection Agency, Office of Solid Waste and Emergency Response,
Office of Solid Waste. Washington, DC 1997, ``EPA's Composite Model
for Leachate Migration with Transformation Products (EPACMTP)
Technical Background Document.'' EPA530-R-03-006. U.S. Environmental
Protection Agency, Office of Solid Waste and Emergency Response,
Office of Solid Waste. Washington, DC April 2003, and ``EPA's
Composite Model for Leachate Migration with Transformation Products
(EPACMTP) Parameters/Data Background Document''. EPA530-R-03-003.
U.S. Environmental Protection Agency, Office of Solid Waste and
Emergency Response, Office of Solid Waste. Washington, DC April
2003.
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EPA's Regional Offices, and certain states, use version 2.0 of the
DRAS model, or earlier versions of it, to determine whether to grant
requests for delistings under 40 CFR 260.22. The DRAS model is a
screening tool that contains several assumptions that are designed to
be protective of public health. In addition, EPA then adjusted the DRAS
model results to take into account exposures to children. The DRAS
model assesses human health considerations, by assuming that
populations that live near the landfill (nearby residents) may be
exposed to chemical constituents that are released from the waste that
is placed in the landfill. EPA used the DRAS model to calculate the
levels of chemical constituents in a waste (waste concentrations) that
would not exceed the acceptable levels at the nearby receptor. The
acceptable levels are based on the target risks the Agency used in its
evaluation. For carcinogens, EPA used an increased probability of
developing cancer that is less than or equal to one in one hundred
thousand (1 x 10-5). For non-carcinogens, EPA used a
``hazard quotient'' less than or equal to 1.0; the hazard quotient is
the ratio of an individual's chronic daily exposure to a standard, such
as the chronic reference dose. (The reference dose is ``an estimate
(with uncertainty spanning perhaps an order of magnitude) of a daily
oral exposure for a chronic duration (up to a lifetime) to the human
population (including sensitive subpopulations) that is likely to be
without an appreciable risk of deleterious effects during a
lifetime.'') \9\ These target risk levels are consistent with those
discussed in EPA's hazardous waste listing determination policy (see
the discussion in a proposed listing for wastes from the dye and
pigment industries, December 22, 1994 (59 FR 66072)).
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\9\ See EPA's Integrated Risk Information System (IRIS) at
http://www.epa.gov/iris/index.html.
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The DRAS model assesses environmental risk by examining the aquatic
organisms in a body of surface water downhill from the landfill
(ecological receptors) that are exposed to small quantities of chemical
constituents that are released from the waste in the landfill. As with
the human health considerations, the Agency can assess an acceptable
risk level for those aquatic organisms, such that the sustainability of
the organisms' population in the surface water body is not compromised.
The DRAS model then calculates the levels of chemical constituents in
waste placed in the landfill (i.e., waste concentrations) that should
not be exceeded in order to have acceptable levels of these
constituents in the nearby body of surface water.
For a landfill disposal scenario, the DRAS model predicts how
constituents of potential concern, or COPCs, will move through the
environment and affect nearby people or aquatic organisms. The DRAS
model predicts releases of COPCs from the waste into the groundwater
beneath the landfill, then accounts for human exposure from drinking
contaminated groundwater, inhaling volatile constituents when using
contaminated groundwater for showering, and dermal contact from bathing
with contaminated groundwater. The DRAS model also
[[Page 2226]]
predicts releases of COPCs from the waste (both waste particles and
volatile emissions) into the air above the landfill. DRAS then accounts
for inhalation of volatile constituents and particles, and for
windblown particles landing on soil and a child ingesting the
contaminated soil. Finally, the DRAS model predicts releases of COPCs
from the waste, due to storm water that erodes waste from an open
landfill and runs off into a nearby body of surface water. Then the
DRAS model takes into account human exposure from eating fish and
drinking contaminated surface water, and for the exposures of the fish
to contaminated surface water. In addition, EPA adjusted the DRAS model
results to take into account exposures to children. See the Technical
Support Document for a complete description of the scenario that is
modeled in DRAS version 2.0, the human health and ecological exposure
pathways, and the data sources the Agency used as model inputs. The
DRAS version 2.0 technical documentation, ``User's Guide for the EPA
Region 6 Delisting Risk Assessment Software'' (EPA906-D-98-001) and the
``Delisting Technical Support Document,'' which is distributed as part
of the DRAS modeling software, provides further details about the
specific assumptions and the mathematical equations that the model
uses. These documents are in the docket.
2. How EPA Chose Constituents of Potential Concern for Evaluation
Section IV. F. describes briefly the constituents likely to be
present in motor vehicle manufacturers' F019 waste. To identify
constituents of potential concern, EPA reviewed information from 13
motor vehicle manufacturing facilities' delisting petitions.\10\ This
information included material safety data sheets (MSDS's) that identify
the specific chemicals used in the conversion coating process; these
chemicals are likely to be present in the wastewater that is treated
and from which F019 sludge results.
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\10\ The 13 motor vehicle manufacturing facilities are BMWMC
(BMW Manufacturing Corp.), located in Greer, South Carolina; Nissan,
in Smyrna, Tennessee; General Motors (GM) in Lansing, Michigan; GM
in Lake Orion, Michigan; GM in Oklahoma City, Oklahoma (draft
petition submitted and available only in the EPA Headquarters docket
for today's notice); GM in Lordstown, Ohio; GM in Pontiac, Michigan;
GM in Hamtramck, Michigan; GM in Flint, Michigan; GM Grand River in
Lansing, Michigan; Ford in Wixom, Michigan; Ford in Wayne, Michigan;
and DaimlerChrysler Jefferson North in Detroit, Michigan.
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EPA also compiled the analytical data received from the 13
facilities' delisting petitions (and from verification sampling at
several facilities) into a spreadsheet that is available in the docket
for this rulemaking. These 13 facilities analyzed F019 sludge samples
for approximately 240 chemical constituents. Many chemicals were not
found in the F019 sludge at the detection limits used. If these ``non-
detect'' chemicals were not mentioned on the material safety data
sheets, then EPA did not evaluate these constituents further. For
example, petitioners analyzed sludge samples for pesticides, such as 2-
sec-butyl-4,6-dinitrophenol (Dinoseb); however, these were not found in
the MSDS's or in the sludge samples, nor would one expect to find them
in a motor vehicle manufacturing facility's wastewater treatment
sludge.
Of the constituents analyzed in the F019 wastes, 56 were detected
in one or more samples. EPA evaluated the concentrations reported by
the petitioners for these 56 chemicals (including concentrations that
laboratories reported as estimates). The Agency used the DRAS model
methodology to evaluate potential risks for 55 detected constituents
for human health risks and 49 for environmental risks.\11\
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\11\ For human health, one constituent, sulfide, was not
evaluated using the DRAS methodology because it lacks an appropriate
toxicity value. For ecological risk, two constituents, sulfide and
fluoride, were not evaluated using the DRAS methodology because they
are not present in the DRAS version 2 data base for constituents,
and lack appropriate toxicity values for environmental risks. For
another five of the 56 constituents, EPA lacked appropriate aquatic
toxicity benchmarks to complete an environmental risk assessment.
See the Technical Support Document in the docket for this proposed
rulemaking for details.
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3. Evaluation of Potential Human Health and Environmental Risks
For both human health and environmental risk evaluations, EPA's
analysis assumed the disposal of a total waste volume of 90,000 cubic
yards of F019 into a landfill. This waste volume corresponds to either
a 4,500 cubic yards per year disposal rate for 20 years, or a 3,000
cubic yards per year disposal rate for 30 years. EPA believes it is
quite unlikely that motor vehicle manufacturers would dispose of
amounts greater than 90,000 cubic yards for an extended period of time
in the same landfill based on a review of the delisting facilities'
stated annual F019 sludge production quantities. EPA examined the
information contained in the delisting petitions submitted and more
recent data provided by facilities in the motor vehicle manufacturing
industry. Combining the data from both sources for past generation of
this waste, EPA found that the volumes of sludges disposed ranged from
426 to 3,892 cy/yr (median was 1,088 cy/yr, and the 90th percentile
ranked value was approximately 2,900 cy/yr). Therefore, the use of
3,000 cubic yards per year or 4,500 cubic yards per year represents a
protective upper-bound for the waste volumes reported by the generators
and is likely to overestimate volumes currently produced by the
automotive industry. A number of the constituents detected in the waste
appear to be present at levels that may be of concern from a human
health viewpoint. (None of the constituents that EPA evaluated for
potential environmental harm appeared to be present at levels of
concern.) When using the maximum detected concentrations and a total
volume of 90,000 cubic yards disposed in a landfill, the DRAS modeling
indicated that two of the 55 waste constituents evaluated for human
health effects showed an estimated hazard quotient greater than 1, or
showed an individual's estimated lifetime potential excess cancer risk
to be greater than one in one hundred thousand.
Based on the assessment using DRAS, the Agency determined that only
two constituents (arsenic and nickel) had maximum detected values that
exceeded the levels that DRAS modeling indicated would result in an
acceptable exposure level. (The other constituents had estimated hazard
quotients less than 1 and estimated individual lifetime excess cancer
risk of less than one in one hundred thousand.) For nickel in
groundwater used as drinking water, the estimated hazard quotient was
three. For arsenic in groundwater used as drinking water, the estimated
individual excess lifetime cancer risk was three in one hundred
thousand. Thus, using protective exposure assumptions, the Agency found
that disposing of a total of 90,000 cubic yards of waste (equivalent to
3,000 cubic yards disposed per year for 30 years) containing these two
constituents, at their maximum detected concentrations in an unlined
landfill, exceeded the DRAS limit by up to a factor of 3. The Technical
Support Document describes the DRAS modeling and results, with
discussion and conclusions, in considerably greater detail.
As described above, two constituents (arsenic and nickel) were at
levels that may be of concern using upper-bound assumptions for waste
quantities disposed and constituent concentrations in unlined
landfills. Furthermore, the constituents were reported to be prevalent
in the waste samples. Therefore, EPA examined the robustness of one of
the key assumptions of the DRAS version 2.0 modeling--modeling
[[Page 2227]]
disposal in a landfill without a liner. Within the past 15 years,
changes to landfill requirements in the United States (the promulgation
of federal regulations that require municipal solid waste landfills to
meet certain leakage prevention requirements, and requirements for
collecting and managing landfill gases, e.g., see 40 CFR 258.40) have
caused substantial changes in landfill practices. The majority of
municipal solid waste landfills, and probably many landfills that
accept nonhazardous industrial solid waste but not municipal solid
waste, now are designed, built, and operated with liner systems that
typically include composite liners and leachate collection systems (or
other approved performance standards). The potential risks found by the
DRAS version 2.0 modeling were all from groundwater exposure pathways.
As a result, current landfills with liner systems and leachate
collection systems should dramatically lessen impacts on local
groundwater conditions.
DRAS does not have an option to model the impact of liners on
landfill releases. Therefore, to examine the potential impact of
liners, the Agency compared the levels calculated by the Industrial
Waste Management Evaluation Model (IWEM), for single-lined and
composite-lined landfills.\12\ IWEM is the ground-water modeling
component of the Guide for Industrial Waste Management, used for
recommending appropriate liner system designs for the management of
RCRA Subtitle D industrial waste. The initial IWEM evaluation (Tier 1)
provides a screening assessment with results that are protective over a
range of conditions and situations. The results of the IWEM analysis
indicate that the use of a composite-lined landfill would result in
acceptable risk levels for the two key constituents of concern. The
IWEM generally uses more protective assumptions than the DRAS model.
For example, the IWEM model assumes that the drinking water well is at
a fixed location along the center line of the potential plume of
contamination at a distance of 150 meters from the unit; the DRAS model
allows the well location to vary downgradient from the unit.
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\12\ In IWEM, a single cay liner is a layer of compacted clay
three feet thick (hydraulic conductivity of 1 x 10-7 cm/
sec), and a composite liner consists of a geomembrane liner (high
density polyethylene) overlying the clay layer.
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To further examine the effectiveness of composite liners, EPA also
used the modeling performed for lined landfills in the recent listing
rule for dye and pigment production wastes (February 24, 2005, 70 FR
9138). In this rule, the Agency established a conditional exemption for
wastes disposed in landfills meeting specified liner design
requirements, similar to the proposal in today's notice. The results
from that effort show that composite-lined landfills provided
significant protection (about two orders of magnitude) compared to an
unlined unit.\13\ Therefore, based on both the IWEM results and the
modeling in the dye and pigment waste listing, EPA believes that
disposal of F019 sludges from motor vehicle manufacturers in composite-
lined landfills (or other approved performance standards) is protective
of human health and the environment.
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\13\ The results for zinc and several other metals (lead,
copper, and barium) demonstrated that composite lined landfills
reduced risks from landfill releases factors of 133 to 269 compared
to unlined units. See ``Risk Assessment Technical Background
Document for the Dye and Pigment Industry Hazardous Waste Listing
Determination,'' November 10, 2003, Table 2-1b, page 2-4.
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The Agency also considered whether the presence of just a single
clay liner would be sufficient to reduce the risks below levels of
concern. In addition to the IWEM results that showed disposal in a
composite-lined landfill was protective, this analysis also yielded
levels that would be allowed for a landfill with a single clay liner
and for an unlined landfill. For nickel, the levels that would be
allowed for a single clay liner were approximately 3-fold higher than
the allowable levels for an unlined unit. For arsenic, the allowable
level for a single clay liner was approximately 7-fold higher than the
allowable level for an unlined unit. Thus, a single clay liner (as
defined in the IWEM model assumptions) may be sufficiently protective
to allow disposal in a unit with such a single liner, because a single
clay liner may reduce the risks from these constituents to levels below
the DRAS levels of concern. (EPA is somewhat uncertain about the
appropriateness of extending the apparent margin of safety afforded by
a single clay liner from one model (IWEM) to another model's results
(DRAS), and we are seeking comment on this approach.) Therefore, EPA is
requesting comment on a second regulatory option that would allow
disposal of this waste in all state-permitted municipal solid waste
landfills (regulated under 40 CFR Part 258) and state-permitted
industrial solid waste landfills (regulated under 40 CFR Part 257),
even those that do not meet the liner design requirements in Sec.
258.40, provided the landfills are equipped with at least a single clay
liner.\14\ The second option, for example, would allow disposal in a
state-permitted municipal landfill that was constructed prior to the
effective date for the Sec. 258.40 regulations (an ``existing'' unit),
provided the unit had at least a single clay liner. EPA expects that
this would provide additional regulatory flexibility for generators,
and would not be likely to result in adverse health effects.
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\14\ This second proposed option would also allow disposal in a
hazardous waste landfill regulated under Sec. 264.301 or Sec.
265.301, which require composite liner systems.
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Therefore, EPA is taking comment on a second option, which would
allow disposal in a landfill with a single clay liner, as well as
allowing disposal in landfills with the more protective composite liner
systems. Under this option, the regulatory language for the F019 could
be revised to read as follows.
Wastewater treatment sludges from the manufacturing of motor
vehicles using a zinc phosphating process will not be hazardous if
the wastes are either: disposed in a Subtitle D municipal or
industrial landfill unit that is equipped with a single clay liner
and is permitted, licensed or otherwise authorized by the state; or
disposed in a unit that is subject to, or otherwise meets, the liner
requirements in Sec. 258.40, Sec. 264.301, Sec. 265.301.
EPA is requesting comments on whether adequate clay liners are
found in active older municipal landfill units and industrial solid
waste landfills, and whether this requirement would provide any
significant regulatory relief for generators by meaningfully expanding
their disposal options. EPA is also seeking comment on the likelihood
of generators of the F019 waste constructing landfill units at their
facilities and what types of liner systems would be used for these
onsite units. EPA also solicits comment on whether the option allowing
disposal in a landfill unit with a clay liner (permitted or licensed by
the state) will be straightforward to implement or whether it will
raise implementation or compliance issues for the waste generator, such
as the availability of state standards for clay liners in older
landfills.
The Agency is seeking comments on the level of regulatory relief
that would be provided by both of these proposed approaches. Municipal
landfills, for example, have been required to have composite liners (or
performance based equivalents) as set out in 40 CFR 258.40, except for
``existing'' units (i.e., generally units or cells that existed prior
to 1993). Therefore, EPA believes that most lined landfill units are
likely to have composite liners. The Agency is seeking information on
the extent to
[[Page 2228]]
which generators would use the option of sending waste to units with
only single clay liners (under proposed option two) and any information
relevant to the existence and likely use of landfill units with single
clay liners. In addition, EPA is seeking comments on the burden
associated with the recordkeeping requirements that would result from
documenting compliance with disposal of the exempt waste in a landfill
unit with a single clay liner or a composite liner. Under the second
proposed option, the generator would be required to document that the
waste went to a permitted landfill unit that was equipped with a clay
liner. In this case, however, the generator would be able to rely on
the permitting agency to ensure that the clay liner was adequate. EPA
solicits comments on any issues that might be raised by this approach
to recordkeeping and documentation.
4. Uncertainty in the Risk Assessment Results
The Technical Background Document describes the risk results, and
gives examples of the known uncertainties associated with the risk
results. The risk results used for this proposal are based on the same
kinds of data and health protective models that the Agency typically
uses in national-scale waste policy decision making. The risk results
show estimated risks for an individual at the ``high-end'' of the risk
distribution, and are designed to be protective of human health and the
environment. As such, the resulting risk estimates are likely to
reflect protective outcomes in more than 90 percent of the situations
modeled.\15\ When using central tendency assumptions \16\ for an
unlined landfill, the hazard quotient for nickel was calculated to be
0.1 and the cancer risk factor for arsenic was two in a million, both
values being well below the risk thresholds used by the Agency in
hazardous waste listing determinations.
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\15\ Conceptually, ``high-end'' means above the 90th percentile
of the risk distribution; see Guidance on Risk Characterization for
Risk Managers and Risk Assessors, February 26, 1992 memorandum from
F. Henry Habicht, II, Deputy Administrator, to Assistant
Administrators and Regional Administrators. We use the term ``high-
end'' here to refer to modeling inputs that are at or above the 90th
percentile of a data set.
\16\ Note that the results described as ``central tendency''
here reflect changes in annual waste volume, disposal time, and
constituent concentration (and for non-cancer effects, drinking
water intake). Other variables, such as the dilution/attenuation
factor and exposure frequency (and for cancer effects, drinking
water intake) remain at high-end values.
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Our overall assessment is that the models we use could overestimate
the potential adverse effects of disposing of the F019 waste in either
unlined or lined landfills. Thus, actual exposures that would be
experienced by future residents near the landfill will likely be lower
than those estimated using the DRAS version 2 model. Examples of the
protective assumptions used in the high-end DRAS results include: (1)
The disposal volume (the 90th percentile value of 3,000 cubic yards per
year in the same landfill for 30 years), (2) the constituent
concentrations (the maximum values found in the sampling data from the
13 delisting submissions), and (3) exposure levels (90th percentile
value for ingestion of groundwater by children for 350 days per year).
The risk results represent EPA's reasonable efforts in using
existing knowledge of the national waste management system, the science
of environmental fate and transport of chemicals, and the science of
toxicology to assess the likely hazards of managing the F019 waste as
nonhazardous. The Agency believes that, in spite of some of the
specific uncertainties that exist, the risk estimates provide a useful
basis for our decision about whether to continue to regulate this waste
as a hazardous waste. EPA is requesting comments on our risk assessment
approach and on the resulting risk estimates.
VI. Implementation of the F019 Proposed Rule
A. Land Disposal Conditions
The proposed amendment to the F019 listing exempts certain wastes
disposed in landfill units that are subject to certain liner design
requirements. This exemption is based on EPA's risk analysis
demonstrating that wastes disposed in landfills with certain types of
liners do not present significant risks for sludges generated by motor
vehicle manufacturers. Today's first proposal would allow motor vehicle
manufacturers (as defined in Sec. 261.31(b)(i)) to manage wastes from
chemical conversion coating of aluminum when using a zinc phosphating
process as nonhazardous, if the wastes are disposed in a landfill
subject to, or otherwise meeting, the landfill requirements in Sec.
258.40, Sec. 264.301 or Sec. 265.301. The second proposal in today's
notice would also exempt the waste if the generators dispose of the
waste in a state-permitted non-hazardous landfill unit that has, at a
minimum, a single clay liner.
The requirements under Sec. 258.40, which apply to new municipal
solid waste landfills or new units at existing municipal solid waste
landfills, require use of a composite liner and leachate collection
system (or a design meeting a protective performance standard and
approved by the Director of an approved state program or by EPA). The
infiltration rates used by IWEM (and also for the Dye and Pigment
listing; 70 FR 9138, February 24, 2005) were based on data from
landfills with composite liners similar to the design required under
Sec. 258.40. Consequently, EPA's proposed option number one allows
disposal of wastes in a municipal solid waste landfill unit that is
subject to the Sec. 258.40 design requirements. EPA is specifying that
the landfill unit must be subject to these requirements because some
operating landfills may still use older units that are not required to
meet the design requirements in Sec. 258.40. The Agency's risk
assessment shows that unlined landfills may not be sufficiently
protective for some of the sludges from automobile manufacturing, i.e.,
higher volume sludges with high levels of key constituents of concern.
Federal law requires that all municipal landfills comply with the Part
258 landfill regulations. Additionally, states have permitting programs
to implement the Part 258 requirements for municipal landfills. Permit
programs must ensure that municipal landfill units in the states comply
with the Sec. 258.40 design standards (see 40 CFR 239.6(e)).
Consequently, landfill cells subject to the Part 258.40 design
standards are required to comply with the federal standards or more
stringent state standards.
Some generators of F019 wastes may still choose to send wastes to
Subtitle C hazardous waste landfills. New landfill units and lateral
expansions of existing hazardous waste landfills are required to have
``double'' composite liners including synthetic components. See 40 CFR
264.301 and 265.301. The Agency would expect that these liner systems
have even lower infiltration rates than the composite liners required
under Sec. 258.40, because the Subtitle C requirements include another
composite liner, in addition to the composite liner (or equivalent)
required of municipal solid waste landfills (e.g., see Sec.
261.301(c)). Therefore, EPA is proposing to give generators the option
of sending wastes to landfill units subject to these stricter hazardous
waste liner requirements.
The Agency is also proposing to include a third class of landfills
in the exemption, namely, Subtitle D industrial solid waste landfills
that meet the liner design requirements in Sec. 258.40 or Subtitle C
landfills. These ``industrial landfills'' are subject to Federal
regulations in Part 257, which apply to non-municipal, nonhazardous
waste landfills. While the Part 257
[[Page 2229]]
regulations do not have liner requirements, states have regulations
governing the design of such landfills that often include requirements
for liner systems.\17\ EPA believes that generators should have the
option of using lined industrial landfills that are as protective as
lined municipal solid waste landfills.
---------------------------------------------------------------------------
\17\ Commercial offsite landfills are subject to regulations by
states, including liner requirements. See the report by Association
of State and Territorial Solid Waste Management Officials (ASTSWMO),
``Non-Municipal, Subtitle D Waste Survey,'' March 1996, and the EPA
report, ``State Requirements for Industrial Non-Hazardous Waste
Management Facilities,'' October 1995.
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Therefore, under the first option, EPA is proposing that the
amended listing include an exemption for wastes disposed in any
landfill that is subject to, or meets, the landfill requirements in
Sec. 258.40, Sec. 264.301, or Sec. 265.301. Under the second option,
EPA is proposing an alternative approach that would also allow disposal
of the subject waste in a landfill unit with a single clay liner as
described previously.
Note, however, that this exemption would not apply if wastewaters
from aluminum conversion coating processes using the zinc phosphating
process are commingled with wastewaters arising from aluminum
conversion coating using other non-exempt processes (e.g., chromating
processes); the sludge resulting from such commingled wastewaters would
still carry the F019 waste code, because it would be derived, in part,
from an aluminum conversion coating process that is not zinc
phosphating. Furthermore, aluminum conversion coating sludges derived
from zinc phosphating at motor vehicle manufacturers are still subject
to the ``mixture rule,'' and would become hazardous waste if mixed with
any other listed hazardous waste.\18\ In addition, the motor vehicle
manufacturers would also be subject to the requirements of Sec. 268.3
(dilution prohibited as a substitute for treatment). Finally, if the
zinc phosphating sludges were generated such that they exhibit one of
the hazardous waste characteristics (see Sec. 261.20 through Sec.
261.24), the waste would continue to be regulated as a hazardous waste.
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\18\ The ``mixture'' rule at Sec. 261.3(a)(2)(iv) provides
that, with limited exceptions, any mixture of a listed hazardous
waste and a solid waste is itself a hazardous waste.
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1. How Generators Document Compliance With the Landfill Condition
Under the proposed option number one, generators of wastewater
treatment sludges claimed to be nonhazardous are responsible for
ensuring that shipments of such waste are placed in landfill units that
meet the design criteria specified in Sec. 258.40, Sec. 264.301, or
Sec. 265.301. Under option two, generators would also need to document
compliance if they send their waste shipments to a state-permitted
landfill unit that has an adequate single clay liner. Under either
option, generators wishing to qualify for the exemption from the F019
listing would be required to maintain records to show that their wastes
are placed in an appropriate landfill unit, whether the unit is at a
municipal solid waste landfill, hazardous waste landfill, or an
industrial solid waste landfill (in the case of option two, this would
include disposal in a unit with a single clay liner). EPA is proposing
a flexible performance standard that would allow the generator to
demonstrate that shipments of waste were received by a landfill unit
that is subject to or meets the landfill design standards set out in
the listing description through various means. A generator may be able
to demonstrate fulfillment of the landfill disposal condition by means
of a signed contract with the owner/operator of a municipal solid waste
landfill, a hazardous waste landfill, or an industrial solid waste
landfill receiving the waste; the generator should also retain specific
shipping documents to demonstrate that the contract was implemented.
The contract must show that the landfill owner/operator would use only
units subject to the applicable Part 258 or Part 264 or Part 265 design
requirements (under option two, the contract, state permit, or
documentation from the state may also be used to document that units
meeting the single liner specifications would be used). A generator may
also be able to support a claim of fulfilling the landfill design
requirements by means of signed nonhazardous waste bills of lading,
manifests, or invoices documenting delivery, provided they show that
wastes were placed in municipal solid waste landfill units subject to
the applicable Part 258 design requirements or Subtitle C landfill
units subject to the Part 264 or Part 265 design requirements.
Similarly, the generator would be responsible for documenting that non-
municipal, nonhazardous waste landfill units (industrial landfill
units) meet the specified liner standards. States have regulations
governing the design of such industrial solid waste landfills, and
landfill operators must have certifications or permit conditions
available to provide to generators who wish to use such landfills
instead of municipal solid waste or hazardous waste landfill units.
Therefore, state regulations could help support a claim that the
nonhazardous waste bills of lading, manifests, or invoices documenting
delivery satisfy the applicable liner requirements.
2. Consequences of Failing To Meet the Disposal Conditions or
Recordkeeping Requirements
Disposal in a landfill subject to or meeting the landfill design
requirements is a condition of the exemption to the listing under the
two approaches being proposed. If a generator does not fulfill this
condition, the sludges would be F019 listed wastes, subject to the
applicable Subtitle C requirements. Therefore, the Agency advises
generators to properly store the wastewater treatment sludges that are
claimed to be nonhazardous wastes to ensure that improper releases do
not occur. EPA encourages all generators to store all wastes in
containers, tanks, or buildings, so as to reduce potential releases to
the environment through spills, wind dispersal, and precipitation. The
exemption for these wastes is conditioned upon disposal in the landfill
units that are subject to, or otherwise meet, the specified design
criteria.
In addition, a generator claiming that the wastewater treatment
sludges are not F019 listed waste must maintain sufficient
documentation to demonstrate that shipments of such waste were disposed
in a landfill subject to or meeting the liner design standards
specified under the conditional exemption. The proposed regulatory text
(Sec. 261.31(b)(4)(iii)) specifies necessary records that a generator
claiming the exemption must keep.
Generators taking advantage of the exemption that fail to meet the
condition of disposing the wastewater treatment sludges in a landfill
unit that meets certain liner design criteria would be subject to
enforcement action, and the wastewater treatment sludges may be
considered to be hazardous waste from the point of their generation.
EPA could choose to bring an enforcement action under RCRA Sec.
3008(a) for all violations of hazardous waste regulatory requirements
occurring from the time the wastewater treatment sludges are generated
up to the time they are finally disposed. Releases of hazardous waste
could also potentially be addressed through enforcement orders, such as
orders under RCRA Sec. Sec. 3013 and 7003. States could choose to take
an enforcement action for violations of state hazardous waste
requirements under state authorities.
Generators claiming the exemption from the F019 listing must be
able to demonstrate to the appropriate
[[Page 2230]]
regulatory agency that the condition of the exemption is being met. In
accordance with existing requirements, the facility claiming the
exemption bears the burden of proof to demonstrate conformance with the
requirements specified in the regulation. See 40 CFR 261.2(f).
EPA requests comment on whether the proposed record-keeping
requirements should also be made conditions of the exemption, rather
than established as separate recordkeeping requirements. In addition,
the Agency seeks comments on whether additional requirements or
conditions are necessary to ensure that the waste is not improperly
disposed or released prior to disposal in landfills meeting the
landfill requirements in Sec. 258.40, Sec. 264.301 or Sec. 265.310
(or under the second proposed option, a municipal or industrial solid
waste landfill with a single clay liner). EPA is considering the need
to include a condition for the exemption that the waste be stored so as
to minimize releases to the environment. The regulatory condition being
considered by the Agency could include the following possible
regulatory language.
Generators of wastewater treatment sludges that are claimed to
be nonhazardous must manage such wastes in a manner that prevents
their loss to the environment. Such wastes must be stored in tanks,
containers, or buildings that are constructed and maintained in a
way that prevents releases of these materials into the environment.
At a minimum, any building used for this purpose must be an
engineered structure that has a floor, walls and a roof to prevent
wind dispersal and contact with precipitation. Tanks used for this
purpose must be structurally sound and, if outdoors, must have roofs
or covers that prevent contact with wind and precipitation.
Containers, such as super sacks, drums, or roll-on/roll-off
containers, used for this purpose must be kept closed except when it
is necessary to add or remove material, and must be in sound
condition. Generators may store the waste on site for no longer than
90 days.
EPA may make all or some of these requirements conditions in the final
rule.\19\
---------------------------------------------------------------------------
\19\ For a facility that generates a volume of 3,000 cy/yr, an
average weekly volume would be about 60 cy. This would probably
require 2 to 3 dumpsters (20 to 40 cy in size). Given that
generators are unlikely to want to store many dumpsters, we believe
that a 90 day limit is reasonable and would not be burdensome.
---------------------------------------------------------------------------
EPA obtained information from delisting petitions that indicates
generators of the F019 sludge store the dewatered sludges in containers
or bins prior to shipment offsite for disposal. During visits to three
vehicle manufacturing plants generating sludges, EPA found that sludge
dewatering equipment and sludge containers were kept inside buildings,
reducing any potential for releases. While these management practices
may reflect the fact that the delisted sludges were previously
hazardous waste, we expect that these practices would continue after an
exemption.\20\ We seek any further information from commenters as to
the current sludge management practices at facilities that currently
generate F019 wastes (or delisted F019), and any information on
practices at vehicle manufacturers that do not currently generate F019
(i.e., plants that do not use aluminum). If such information indicates
that generators are already handling the waste to minimize releases,
the Agency will take this into consideration when deciding whether
storage conditions are necessary.
---------------------------------------------------------------------------
\20\ Two facilities were generating delisted F019 sludges, and
one had just added conversion coating of aluminum to its process and
eventually obtained a delisting. See note to docket on site visits
by Mr. James Michael.
---------------------------------------------------------------------------
3. Land Disposal Restrictions
The Agency today is proposing to amend the F019 listing to exclude
wastewater treatment sludges from zinc phosphating, when such
phosphating is used at motor vehicle manufacturers. These wastewater
treatment sludges will not be hazardous if the wastes are disposed in a
landfill unit subject to, or otherwise meeting, the landfill
requirements for the liner systems specified in the F019 listing under
both of the proposed options.
40 CFR Part 268 prohibits the land disposal of RCRA hazardous waste
unless they have been treated to meet a certain level or by a
technology specified by EPA. See Table 1.Treatment Standards for
Hazardous Wastes in Sec. 268.40. The land disposal restrictions only
apply to solid wastes that are RCRA hazardous wastes. Therefore, if the
wastewater treatment sludges are disposed in landfill units that are
subject to or meet the landfill design criteria outlined in today's
proposal, they would not be hazardous waste from the point of
generation and, thus, not subject to the land disposal restriction
requirements.
B. Interrelationship Between Proposed Rule and Current F019 Delistings
The question arises as to the status of waste generated by
facilities that currently have an exemption for their wastes through a
delisting under Sec. 260.22. Today's proposed revision to the F019
listing would exempt wastes from motor vehicle manufacturing facilities
that meet the landfill disposal conditions. Thus, wastes that are to be
disposed in a subtitle D or subtitle C unit that meets the liner design
standards specified in the listings are exempted from the listing from
their point of generation. As such, the exempt waste would not be
subject to any RCRA subtitle C management requirements for generation,
storage, transport, treatment, or disposal (including land disposal
restrictions). These exempt wastes would never become F019 listed
wastes (when the specified disposal conditions are met), and, thus, the
existing delistings (including any conditions associated with the
delisting) would be rendered moot by today's proposal, presuming the
authorized state adopts the rule, where applicable. However, EPA
realizes that facilities with delistings may wish to avoid any
confusion that might arise in the implementation of the exemption
proposed in today's notice. Therefore, the facility may wish to seek to
have its delisting withdrawn by the regulatory authority (the EPA
Region or state), unless the facility wishes to continue to manage its
waste pursuant to its existing delisting. However, EPA encourages
facilities with delistings to be sure that the state in which they
operate has adopted the exemption prior to moving to drop an existing
delisting. See the discussion below in Section VII. State Authorization
for additional information on the authorization process.
VII. State Authorization
Under section 3006 of RCRA, EPA may authorize a qualified state to
administer and enforce a hazardous waste program within the state in
lieu of the federal program, and to issue and enforce permits in the
state. Following authorization, the state requirements authorized by
EPA apply in lieu of equivalent Federal requirements and become
Federally-enforceable as requirements of RCRA. EPA maintains
independent authority to bring enforcement actions under RCRA sections
3007, 3008, 3013, and 7003. Authorized states also have independent
authority to bring enforcement actions under state law.
A state may receive authorization by following the approval process
described in 40 CFR part 271. Part 271 of 40 CFR also describes the
overall standards and requirements for authorization. After a state
receives initial authorization, new Federal regulatory requirements
promulgated under the authority in the RCRA statute do not apply in
that state until the state adopts and receives authorization for
equivalent state requirements. The state
[[Page 2231]]
must adopt such requirements to maintain authorization. In contrast,
under RCRA section 3006(g), (42 U.S.C. 6926(g)), new Federal
requirements and prohibitions imposed pursuant to the 1984 Hazardous
and Solid Waste Amendments (HSWA) take effect in authorized states at
the same time that they take effect in unauthorized states. Although
authorized states still are required to update their hazardous waste
programs to remain equivalent to the Federal program, EPA carries out
HSWA requirements and prohibitions in authorized states, including the
issuance of new permits implementing those requirements, until EPA
authorizes the state to do so. Authorized states are required to modify
their programs only when EPA promulgates Federal requirements that are
more stringent or broader in scope than existing Federal requirements.
RCRA section 3009 allows the states to impose standards more
stringent than those in the Federal program. See also 40 CFR 271.1(i).
Therefore, authorized states are not required to adopt Federal
regulations, either HSWA or non-HSWA, that are considered less
stringent.
Today's rule is proposed pursuant to non-HSWA authority. The
proposed changes in this rule are less stringent than the current
Federal requirements. Therefore, states will not be required to adopt
and seek authorization for the proposed changes. EPA will implement the
changes to the exemptions only in those states which are not authorized
for the RCRA program. Nevertheless, EPA believes that this proposed
rulemaking has considerable merit, and the Agency thus strongly
encourages states to amend their programs and become Federally-
authorized to implement these rules once they become final.
VIII. Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) Designation and List of Hazardous Substances and
Reportable Quantities
The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA) defines the term ``hazardous substance''
to include RCRA listed and characteristic hazardous wastes. When EPA
adds a hazardous waste under RCRA, the Agency also will add the waste
to its list of CERCLA hazardous substances. EPA also establishes a
reportable quantity, or RQ, for each CERCLA hazardous substance. EPA
provides a list of the CERCLA hazardous substances along with their RQs
in Table 302.4 at 40 CFR 302.4. If a person in charge of a vessel or
facility that releases a CERCLA hazardous substance in an amount that
equals or exceeds its RQ, then that person must report that release to
the National Response Center (NRC) pursuant to CERCLA section 103. That
person also may have to notify state and local authorities.
Because today's rule is proposing to modify the scope of the EPA
Hazardous Waste No. F019 under 40 CFR 261.31 listing to exclude
wastewater treatment sludges from zinc phosphating, when such
phosphating is used in the motor vehicle manufacturing process, and if
the wastes are disposed in a landfill is subject to, or meets certain
liner design requirements, the Table 302.4 at 40 CFR 302.4 would be
modified to adopt the same definition and scope.
IX. Relationship to Other Rules--Clean Water Act
We believe that today's proposed regulatory changes will not: (1)
Increase the amount of discharged wastewater pollutants at the industry
or facility levels; or (2) interfere with the ability of industrial
generators and recyclers of electroplating residuals to comply with the
Clean Water Act requirements (e.g., Metal Finishing Effluent
Guidelines, 40 CFR Part 433).
X. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735), the Agency must
determine whether this regulatory action is ``significant'' and
therefore subject to formal review by the Office of Management and
Budget (OMB) and to the requirements of the Executive Order, which
include assessing the costs and benefits anticipated as a result of the
proposed regulatory action. The Order defines ``significant regulatory
action'' as one that is likely to result in a rule that may: (1) Have
an annual effect on the economy of $100 million or more or adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or state, local, or tribal governments or communities; (2)
create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency; (3) materially alter the budgetary
impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients thereof; or (4) raise novel legal
or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive Order.
Pursuant to the terms of Executive Order 12866, although the annual
effect of this proposed rule is expected to be less than $100 million,
the Agency has determined that today's proposed rule is a significant
regulatory action because this proposed rule contains novel policy
issues. As such, this action was submitted to OMB for review. Changes
made in response to OMB suggestions or recommendations are documented
in the docket to today's proposal.
The following is a summary of EPA's economic analysis as contained
in the Economics Background Document in support of this proposal, which
is available for public review and comment in the EPA Docket
(www.regulations.gov). Although 73 industries in 42 states generate 0.7
million tons per year of RCRA F019 hazardous waste sludge as of 1999,
the scope of this F019 proposed rule is limited to the (1) automobile
manufacturing industry (NAICS 336111) and (2) the light truck/utility
vehicle manufacturing industry (NAICS 336112). The Agency defined this
scope in relation to 15 recent (1997-2005) delisting final
determinations for these two motor vehicle manufacturing industries in
EPA Regions 4 and 5.\21\ Under the current F019 listing description,
motor vehicle manufacturers become F019 sludge generators if they use
aluminum parts on vehicle bodies which undergo the chemical conversion
(zinc phosphating) process. Motor vehicle manufacturers began in the
early 1970's, to substitute lighter-weight aluminum parts for heavier
steel parts to achieve national vehicle fleet fuel efficiency and
vehicle pollutant emission reduction objectives. If promulgated, the
proposed elimination of RCRA Subtitle C hazardous waste regulatory
requirements for waste transport, waste treatment/disposal, and waste
reporting/recordkeeping in this proposed rule, is expected to provide
$1.6 to $4.6 million per year in regulatory cost savings to 14
facilities in these two industries which
[[Page 2232]]
are known as of 2005 to generate about 8,700 tons per year of F019
sludge, but are not yet delisted (as of year-end 2005). Although
today's proposed action presents alternative RCRA Subtitle D non-
hazardous waste landfill liner specifications (i.e., liner design
criteria) as possible conditions for exemption of F019 sludge from RCRA
Subtitle C regulation, the economic impact analysis does not
distinguish landfill liner types in this cost savings estimate.
Secondary impacts of the proposed rule may also include potential
future RCRA regulatory cost avoidance for up to 39 other facilities in
these two industries not currently generating F019 sludge, but which
may begin applying aluminum parts in vehicle assembly. Furthermore, by
reducing regulatory costs, EPA anticipates that this rule may also
induce other motor vehicle manufacturing facilities to begin using
aluminum in vehicles sooner than they otherwise would, thereby possibly
accelerating future achievement of national air quality and fuel
efficiency objectives. The Economics Background Document provides
estimates for these secondary and induced benefits for this proposed
rule.
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\21\ The Federal Register (FR) citations for the 15 delisting
determinations for F019 are: GM in Lake Orion, Michigan (62 FR
55344, October 24, 1997); GM in Lansing, Michigan (65 FR 31096, May
16, 2000); BMWMC in Greer, South Carolina (66 FR 21877, May 2,
2001); Nissan in Smyrna, Tennessee (67 FR 42187, June 21, 2002); GM
in Pontiac, Michigan, GM in Hamtramck, Michigan, GM in Flint,
Michigan, GM Grand River in Lansing, Michigan, Ford in Wixom,
Michigan, Ford in Wayne, Michigan (68 FR 44652, July 30, 2003);
DaimlerChrylser Jefferson North in Detroit, Michigan (69 FR 8828,
February 26, 2004); GM in Lordstown, Ohio (69 FR 60557, October 12,
2004); Ford in Dearborn, Michigan (70 FR 21153, April 25, 2005); GM
in Janesville, Wisconsin (70 FR 71002, November 25, 2005); and, GM
Saturn in Spring Hill, Tennessee (70 FR 76168, December 23, 2005).
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B. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 1189.18 and a copy may be obtained from Susan
Auby by mail at U.S. Environmental Protection Agency, Collection
Strategies Division (Mail Code 2822), 1200 Pennsylvania Avenue, NW.,
Washington DC 20460, by e-mail at [email protected], or by calling
(202) 566-1672. A copy may also be downloaded from the Internet at
http://www.epa.gov/icr.
EPA under 40 CFR 261.31(b)(4)(iii), proposes to add a recordkeeping
requirement for generators. The proposed rule will require generators
wanting to demonstrate compliance with the provisions of this proposal
to maintain onsite for a minimum of three years documentation
demonstrating that each shipment of waste was received by a landfill
unit that is subject to or meets the landfill design criteria set out
in the listing description. An enforcement action by the Agency can
extend the record retention period (Sec. 268.7(a)(8)) beyond the three
years.
EPA estimates that the total annual respondent burden for the new
paperwork requirements in the rule is approximately 35 hours per year
and the annual respondent cost for the new paperwork requirements in
the rule is approximately $2,600. However, in addition to the new
paperwork requirements in the rule, the Agency also estimated the
burden and cost that generators could expect as a result of complying
with the existing RCRA hazardous waste information collection
requirements for the exempted materials (e.g., preparation of hazardous
waste manifests, biennial reporting). Taking both the new proposed and
existing RCRA requirements into account, EPA expects the rule would
result in a net reduction in national annual paperwork burden to the 14
initially affected NAICS 336111 and 336112 facilities of approximately
920 hours and $67,300. As summarized in the Economics Background
Document and in the prior sub-section of this notice, EPA expects this
net cost savings to be further supplemented by annual cost savings to
these same facilities from reduced waste management costs, by the
expected shift of sludge management from RCRA Subtitle C hazardous
waste management, to RCRA Subtitle D nonhazardous waste management. The
net cost to EPA of administering the rule is expected to be negligible,
since facilities are not required under this proposed rule to submit
any information to the Agency for review and approval. Burden means the
total time, effort, or financial resources expended by persons to
generate, maintain, retain, or disclose or provide information to or
for a Federal agency. This includes the time needed to review
instructions; develop, acquire, install, and utilize technology and
systems for the purposes of collecting, validating, and verifying
information, processing and maintaining information, and disclosing and
providing information; adjust existing systems to comply with any
previously applicable instructions and requirements; train personnel to
be able to respond to a collection of information; search data sources;
complete and review the collection of information; and transmit or
otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR Part 9.
To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, including the use of automated collection
techniques, EPA has established a public docket for this rule, which
includes this ICR, under Docket ID No. EPA-HQ-RCRA-2006-0984. Submit
any comments related to the ICR for this proposed rule to EPA and OMB.
See ADDRESSES section at the beginning of this notice for where to
submit comments to EPA. Send comments to OMB at the Office of
Information and Regulatory Affairs, Office of Management and Budget,
Attn: Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute, unless the agency certifies that the rule will not have
a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities potentially subject to this action, ``small entity'' is
defined according to the for-profit small business size standards set
by the Small Business Administration (SBA), in reference to the two
six-digit NAICS code industries affected by this action: (1) NAICS
336111 automobile manufacturing SBA standard of less than 1,000
employees, and (2) NAICS 336112 light truck and utility vehicle
manufacturing SBA standard of less than 1,000 employees. Today's action
does not directly affect small governmental jurisdictions (i.e., a
government of a city, county, town, school district or special district
with a population of less than 50,000), or small organizations (i.e.,
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field).
According to the most recent U.S. Census Bureau ``Economics
Census'' data for these two NAICS codes--for data year 2002 published
in December 2004 and May 2005, respectively--there were 176 NAICS
336111 establishments operated in 2002 by 161 companies, of which 154
establishments (88%) had less than 1,000 employees (http://www.census.gov/prod/ec02/ec0231i336111t.pdf), and there were 97 NAICS
336112 establishments operated in 2002 by 69 companies, of which 62
establishments (64%) had less than
[[Page 2233]]
1,000 employees (http://www.census.gov/prod/ec02/ec0231i336112t.pdf).
These census statistics reveal that both industries consist of large
fractions of small establishments according to the SBA definitions, but
the census data do not reveal the fraction of companies which are small
(which is the more relevant measure). However, it may be inferred that
there are large fractions of small companies in both industries,
because of the high degree of parity between establishment counts and
companies counts of 0.96 for NAICS 336111 (i.e., 154:to:161), and of
0.71 for NAICS 336112 (i.e., 69:to:97).
Because this action is designed to lower the cost of waste
management for these industries, this proposal will not result in an
adverse economic impact effect on affected entities. Consequently, I
hereby certify that this proposal will not have a significant economic
impact on a substantial number of small entities. In determining
whether a rule has a significant economic impact on a substantial
number of small entities, the impact of concern is any significant
adverse economic impact on small entities, since the primary purpose of
the regulatory flexibility analyses is to identify and address
regulatory alternatives ``which minimize any significant economic
impact of the proposed rule on small entities'' (5 U.S.C. 603 and 604).
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic effect
on small entities subject to the rule. For more information regarding
the economic impact of this proposed rule, please refer to the
``Economics Background Document'' available from the EPA Docket
(www.regulations.gov).
EPA therefore concludes that today's proposed rule will relieve
regulatory burden for all size entities, including small entities. The
Agency continues to be interested in the potential impacts of the
proposed rule on small entities and welcomes comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal Agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
must prepare a written analysis, including a cost-benefit analysis, for
proposed and final rules with ``Federal mandates'' that may result in
expenditures to state, local, and tribal governments, in the aggregate,
or to the private sector, of $100 million or more in any one year.
Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA requires EPA to identify and consider a
reasonable number of regulatory alternatives and adopt the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials to have
meaningful and timely input in the development of regulatory proposals,
and informing, educating, and advising small governments on compliance
with the regulatory requirements.
EPA has determined that this rule does not include a Federal
mandate that may result in expenditures of $100 million or more for
state, local, or tribal governments, in the aggregate, or the private
sector in any one year. This is because this proposed rule imposes no
enforceable duty on any state, local, or tribal governments. EPA also
has determined that this rule contains no regulatory requirements that
might significantly or uniquely affect small governments. In addition,
as discussed above, the private sector is not expected to incur costs
exceeding $100 million. Therefore, today's proposed rule is not subject
to the requirements of sections 202 and 205 of UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
This proposal does not have federalism implications. It 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. This rule directly affects
primarily generators of hazardous waste sludges in the NAICS 3361 motor
vehicle manufacturing industry group. There are no state and local
government bodies that incur direct compliance costs by this
rulemaking. State and local government implementation expenditures are
expected to be less than $500,000 in any one year. Thus, the
requirements of Section 6 of the Executive Order do not apply to this
proposal.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and state and local
governments, EPA specifically solicits comment on this proposed rule
from state and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This proposed rule does not
have tribal implications, as specified in Executive Order 13175.
Today's rule does not significantly or uniquely affect the communities
of Indian tribal governments, nor would it impose substantial direct
compliance costs on them. Thus, Executive Order 13175 does not apply to
this rule.
G. Executive Order 13045: Protection of Children From Environmental
Risks and Safety Risks
The Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997) 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
[[Page 2234]]
explain why the planned regulation is preferable to other potentially
effective and reasonably feasible alternatives considered by the
Agency.
This proposal is not subject to the Executive Order because it is
not economically significant as defined in Executive Order 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this proposed rule present a
disproportionate risk to children.
H. Executive Order 13211: Actions that Significantly Affect Energy
Supply, Distribution or Use
This proposed rule is not a ``significant energy action'' as
defined in Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. This proposed
rule reduces regulatory burden and as explained in our ``Economics
Background Document,'' and may possibly induce fuel efficiency and
energy savings in the national motor vehicle fleet. It thus should not
adversely affect energy supply, distribution or use.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities, unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
proposed rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898, ``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Population'' (February
11, 1994), is designed to address the environmental and human health
conditions of minority and low-income populations. EPA is committed to
addressing environmental justice concerns and has assumed a leadership
role in environmental justice initiatives to enhance environmental
quality for all citizens of the United States. The Agency's goals are
to ensure that no segment of the population, regardless of race, color,
national origin, income, or net worth bears disproportionately high and
adverse human health and environmental impacts as a result of EPA's
policies, programs, and activities. Our goal is to ensure that all
citizens live in clean and sustainable communities. In response to
Executive Order 12898, and to concerns voiced by many groups outside
the Agency, EPA's Office of Solid Waste and Emergency Response (OSWER)
formed an Environmental Justice Task Force to analyze the array of
environmental justice issues specific to waste programs and to develop
an overall strategy to identify and address these issues (OSWER
Directive No. 9200.3-17).
The Agency's risk assessment did not identify risks from the
management of the zinc phosphating sludge generated by the motor
vehicle manufacturing industry provided that the waste is disposed in a
landfill that is subject to or meets the landfill design criteria set
out in today's proposal. Therefore, EPA believes that any populations
in proximity to the landfills used by these facilities should not be
adversely affected by common waste management practices for the
wastewater treatment sludge.
List of Subjects
40 CFR Part 261
Environmental protection, Hazardous materials, Recycling, Waste
treatment and disposal.
40 CFR Part 302
Environmental protection, Air pollution control, Chemicals,
Emergency Planning and Community Right-to-Know Act, Extremely hazardous
substances, Hazardous chemicals, Hazardous materials, Hazardous
materials transportation, Hazardous substances, Hazardous wastes,
Intergovernmental relations, Natural resources, Reporting and
recordkeeping requirements, Superfund, Waste treatment and disposal,
Water pollution control, Water supply.
Dated: January 11, 2007.
Stephen l. Johnson,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations 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, 6924(y), and
6938.
2. Section 261.31 is amended by:
a. In the table in paragraph (a) by revising the alphanumeric entry
F019.
b. Amending paragraph (b) by adding paragraph (b)(4).
The revisions and additions read as follows:
Sec. 261.31 Hazardous wastes from specific sources.
(a) * * *
------------------------------------------------------------------------
Industry and EPA hazardous
waste No. Hazardous waste Hazard code
------------------------------------------------------------------------
* * * * * * *
F019........................... Wastewater treatment
sludges from the
chemical conversion
coating of aluminum
except from zirconium
phosphating in aluminum
can washing when such
phosphating is an
exclusive conversion
coating process.
Wastewater treatment
sludges from the
manufacturing of motor
vehicles using a zinc
phosphating process
will not be hazardous
if the wastes are
disposed in a landfill
unit subject to, or
otherwise meeting, the
landfill requirements
in Sec. 258.40, Sec.
264.301 or Sec.
265.301. For the
purposes of this
listing, motor vehicle
manufacturing is
defined in paragraph
Sec. 261.31(b)(4)(i)
of this section;
paragraphs Sec.
261.31(b)(4)(ii) and
(iii) of this section
describe the
responsibilities and
recordkeeping
requirements for motor
vehicle manufacturing
facilities.
* * * * * * *
------------------------------------------------------------------------
[[Page 2235]]
* * * * *
(b) * * *
(4) For the purposes of the F019 listing, the following apply to
wastewater treatment sludges from the manufacturing of motor vehicles
using a zinc phosphating process.
(i) Motor vehicle manufacturing is defined to include the
manufacture of automobiles and light trucks/utility vehicles (including
light duty vans, pick-up trucks, minivans, and sport utility vehicles).
Facilities must be engaged in manufacturing complete vehicles (body and
chassis or unibody) or chassis only.
(ii) Generators of wastewater treatment sludges that are claimed to
be nonhazardous must ensure that shipments of such waste are placed in
landfill units that are subject to or meet the landfill design criteria
specified in the F019 listing description.
(iii) Generators must maintain in their on-site records
documentation and information sufficient to prove that the wastewater
treatment sludges to be exempted from the F019 listing meet the
condition of the listing. These records must include the volume of
waste generated and disposed of off-site. Generators must maintain
these documents on site for no less than three years. The retention
period for the documentation is automatically extended during the
course of any enforcement action or as requested by the Regional
Administrator or the state regulatory authority.
PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION
3. The authority citation for part 302 continues to read as
follows:
Authority: 42 U.S.C. 9602, 9603, and 9604; 33 U.S.C. 1321 and
1361.
4. In Sec. 302.4, Table 302.4 is amended by revising the entry for
F019 in the table to read as follows:
Sec. 302.4 Designation of hazardous substances.
* * * * *
TABLE 302.4.--List Of Hazardous Substances and Reportable Quantities
[Note: All comments/notes are located at the end of this table]
----------------------------------------------------------------------------------------------------------------
Statutory code Final RQ pounds
Hazardous substance CASRN [cross5] RCRA Waste No. (Kg)
----------------------------------------------------------------------------------------------------------------
* * * * * * *
F019........................... ................... .................. 4 F019............ 10 (4.54)
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.
Wastewater treatment sludges
from the manufacturing of
motor vehicles using a zinc
phosphating process will not
be hazardous if the wastes are
disposed in a landfill unit
subject to, or otherwise
meeting, the landfill
requirements in Sec. 258.40,
Sec. 264.301 or Sec.
265.301. For the purposes of
this listing, motor vehicle
manufacturing is defined in
paragraph Sec.
261.31(b)(4)(i) of this
section; paragraphs Sec.
261.31(b)(4)(ii) and (iii) of
this section describe the
responsibilities and
recordkeeping requirements for
motor vehicle manufacturing
facilities.
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. E7-640 Filed 1-17-07; 8:45 am]
BILLING CODE 6560-50-P