[Federal Register Volume 62, Number 206 (Friday, October 24, 1997)]
[Rules and Regulations]
[Pages 55344-55348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28274]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-5913-8]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Final Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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[[Page 55345]]
SUMMARY: The Environmental Protection Agency (EPA) today is granting a
petition submitted by General Motors Corporation (GM) to exclude (or
``delist'') certain solid wastes from the lists of hazardous wastes
contained in subpart D of part 261. EPA has concluded that the
petitioned waste is not a hazardous waste when disposed of in a
Subtitle D landfill. This exclusion applies only to the wastewater
treatment plant (WWTP) sludge generated at GM's Orion Assembly Center
in Lake Orion, Michigan. Today's action excludes the petitioned waste
from the requirements of the hazardous waste regulations under the
Resource Conservation and Recovery Act (RCRA) when disposed of in a
Subtitle D landfill, but imposes testing conditions to ensure that the
future-generated waste remains qualified for this exclusion.
EFFECTIVE DATE: October 24, 1997.
ADDRESSES: The regulatory docket for this final rule which contains the
complete petition and supporting documents is located at U.S. EPA
Region 5, 77 W. Jackson Blvd., Chicago, IL 60604-3590, and is available
for viewing from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding Federal holidays. Call Steven Pak at (312) 886-4446 for
appointments. The public may copy material from the regulatory docket
at a cost of $0.15 per page.
FOR FURTHER INFORMATION CONTACT: For technical information concerning
this rule, contact Steven Pak at the address above or at (312) 886-
4446.
SUPPLEMENTARY INFORMATION:
I. Background
A. Authority
Under sections 260.20 and 260.22, facilities may petition EPA to
remove their wastes from hazardous waste control by excluding them from
the lists of hazardous wastes contained in subpart D of part 261.
Specifically, section 260.20 allows any person to petition the
Administrator to modify or revoke any provision of parts 260 through
266, 268 and 273; and section 260.22 provides generators the
opportunity to petition the Administrator to exclude a waste on a
``generator-specific'' basis from the hazardous waste lists.
Petitioners must provide sufficient information to allow EPA to
determine that the waste to be excluded does not meet any of the
criteria under which the waste was listed as a hazardous waste. In
addition, where there is reasonable basis to believe that factors
(including additional constituents) other than those for which the
waste was listed could cause the waste to be a hazardous waste, the
Administrator must determine that such factors do not warrant retaining
the waste as a hazardous waste.
B. History of This Rulemaking
On January 12, 1996, GM petitioned EPA to exclude from hazardous
waste control the WWTP sludge generated at its Orion Assembly Center.
After evaluating the petition, on April 18, 1997, EPA proposed to
exclude GM's waste from the lists of hazardous wastes in subpart D of
part 261 (see 62 FR 19087). This rulemaking addresses the public
comments received on the proposal and finalizes the proposed decision
to grant GM's petition.
II. Disposition of Delisting Petition
General Motors Corporation, Orion Assembly Center, 4555 Giddings
Road, Lake Orion, Michigan 48361-1001
A. Proposed Exclusion
GM petitioned EPA to exclude an annual volume of 1,500 cubic yards
of WWTP filter press sludge from the list of hazardous wastes contained
in section 261.31, and subsequently provided additional information to
complete its petition. The WWTP sludge is listed as 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 listed constituents of concern for EPA Hazardous Waste
No. F019 are hexavalent chromium and cyanide (complexed) (see Appendix
VII of part 261).
In support of its petition, GM submitted detailed descriptions and
schematic diagrams of its manufacturing and wastewater treatment
processes, and analytical testing results for representative samples of
the petitioned waste, including (1) the hazardous characteristics of
ignitability, corrosivity, reactivity, and toxicity; (2) total
constituent and Extraction Procedure for Oily Wastes (OWEP, SW-846
Method 1330) analyses for the eight toxicity characteristic metals
listed in section 261.24, plus antimony, beryllium, cobalt, copper,
hexavalent chromium, nickel, tin, thallium, vanadium, and zinc; (3)
total constituent and Toxicity Characteristic Leaching Procedure (TCLP,
SW-846 Method 1311) analyses for 163 volatile and semi-volatile organic
compounds; (4) total constituent and TCLP analyses for total sulfide,
total cyanide, and complexed cyanide; and (5) total constituent
analysis for oil and grease, total organic carbon, and percent solids.
EPA evaluated the information and analytical data provided by GM
and tentatively determined that GM had successfully demonstrated that
the petitioned waste is not hazardous. See the proposed exclusion (62
FR 19087; April 18, 1997) for a detailed explanation of EPA's
evaluation.
B. Response to Comments
EPA received public comment on the April 18, 1997, proposal from
one interested party, the Ecology Center.
Comment: The commenter states that due to the levels of metals and
organic compounds in the petitioned waste, land disposal cannot be
regarded as long-term protection of human health and the environment
since the metals will remain forever and all landfills will eventually
leak. The commenter cites a General Accounting Office report and
stresses that serious problems, such as groundwater contamination, are
encountered in a large number of ``state-of-the-art'' hazardous waste
landfills.
Response: EPA has assumed that disposal in a Subtitle D landfill is
the most reasonable, worst-case disposal scenario for GM's WWTP sludge.
The impacts of this scenario were predicted with EPA's Composite Model
for Landfills (EPACML) which was developed by EPA to predict the
transport of hazardous constituents through soil and ground water from
a waste management unit to a receptor well serving as a drinking-water
source. EPA stated in the final toxicity characteristic (TC) rule that
the EPACML and the toxicity characteristic leaching procedure (TCLP)
would be used for the delisting program in the future (see 55 FR 11833;
March 29, 1990). The method EPA uses to apply the EPACML to delisting
yields conservative yet reasonable estimations of contaminant fate and
transport (56 FR 32993; July 18, 1991). One of the assumptions EPA used
in applying the EPACML is that any liner beneath the landfill would
eventually fail. Another assumption is that the landfill is an infinite
source of hazardous constituents, whereas the levels of constituents
emanating from a landfill may actually decrease over time. In addition,
the model ignores certain attenuative mechanisms in the subsoils that
in reality would tend to reduce the levels of constituents. Thus, EPA
has modeled the WWTP sludge under a worst-case scenario of a
``leaking'' Subtitle D landfill and has determined that the levels of
inorganic and organic constituents at a hypothetical drinking
[[Page 55346]]
water well are below health-based levels of concern.
Comment: The commenter states that while GM's WWTP sludge appears
to pass the TCLP procedure, Subtitle D landfills generate unspecified
quantities of organic acids and compounds some of which may lead to
increased metal solubilities due to complexation reactions. The
commenter concludes that laboratory procedures cannot be relied upon to
represent real-world conditions.
Response: While no laboratory test is universally appropriate in
all circumstances, EPA does not agree with the commenter that no
laboratory procedure can be relied upon to represent ``real-world''
conditions. The TCLP was designed, through extensive research and field
studies, to simulate the leaching of both inorganic and organic
compounds under the acidic conditions expected in actively decomposing
municipal landfills. The specific environment modeled by the TCLP is
disposal of industrial waste with municipal waste in a Subtitle D
landfill. EPA believes that this co-disposal represents a reasonable
worst-case management scenario. EPA also believes that the extraction
fluids employed in the TCLP procedure are more aggressive than the
organic acids generated from municipal wastes and that the TCLP is
reasonably accurate in addressing the mobility of metals and other
constituents. See 51 FR 21653, June 13, 1986, for further discussion of
the TCLP. EPA is not aware of any factors that question the
appropriateness of the TCLP for GM's petitioned waste.
Comment: The commenter states that because of the metal content of
the WWTP sludge and other metal bearing wastes generated by the
automotive and related industries, land disposal results in a loss of
valuable and non-renewable resources. The commenter identifies several
commercially available metal recovery technologies used by the metal
finishing industry and summarizes the advantages of metal recovery over
conventional treatment and disposal. The commenter recommends that GM
conduct an economic and technical feasibility study using the
methodology of total cost accounting.
Response: One of the objectives of RCRA is to conserve valuable
material and energy resources by minimizing the generation of hazardous
waste and the land disposal of hazardous waste by encouraging process
substitution, materials recovery, properly conducted recycling and
reuse, and treatment. However, RCRA's general objectives do not
supersede the specific hazardous waste listing and delisting scheme
established under RCRA. Having fully considered all of the relevant
factors, EPA has determined that GM's petitioned waste does not meet
the criteria for being considered a hazardous waste. RCRA's objective
of resource recovery does not require, and indeed does not authorize,
EPA to forego or reverse this determination.
Similarly, the national policy under the Pollution Prevention Act
(PPA) establishes a hierarchy which prefers pollution prevention at the
source over recycling and prefers recycling over treatment and disposal
in an environmentally safe manner. EPA fully supports this hierarchy
and believes it sets forth a desirable general order of preferences for
pollution control. Again, however, this policy is not a statutory or
regulatory mandate. Nothing in the PPA requires or even contemplates
that EPA must retain materials that EPA finds to be non-hazardous on
the lists of hazardous wastes simply because there exists an ability to
perform resource recovery on these materials.
EPA has no authority to retain GM's petitioned waste as a listed
hazardous waste simply because doing so would effectively promote
reclamation over disposal. There is no question that waste minimization
and resource recovery are desirable and are being encouraged by the
EPA. EPA remains fully committed, in its waste programs and elsewhere,
to promoting pollution prevention objectives. While EPA cannot require
GM to evaluate the feasibility of metals recovery as the commenter
recommends, EPA does encourage GM to consider the request.
C. Changes to Proposed Verification Testing Conditions
In the proposed rulemaking, EPA included delisting levels for 14
constituents that would be protective of human health and the
environment and that the TCLP/OWEP extract of the petitioned waste
could not exceed. However, the proposed levels of 180 mg/l for barium
and 9 mg/l for chromium are greater than the hazardous waste toxicity
characteristic (TC) levels of 100.0 mg/l and 5.0 mg/l respectively (see
section 261.24). Today's rule lowers the proposed delisting levels for
barium and chromium to levels below the TC levels to ensure that the
petitioned waste, even though otherwise protective of human health and
the environment, remains below the TC levels.
Paragraph 1 in Table 1 of Appendix IX to part 261 now reads ``1.
Verification Testing: GM must implement an annual testing program to
demonstrate, based on the analysis of a minimum of four representative
samples, that the constituent concentrations measured in the TCLP (or
OWEP, where appropriate) extract of the waste are within specific
levels. The constituent concentrations must not exceed the following
levels (mg/l) which are back-calculated from the delisting health-based
levels and a DAF of 90: Arsenic--4.5; Cobalt--189.; Copper--126.;
Nickel--63.; Vanadium--18.; Zinc--900.; 1,2-Dichloroethane--0.45;
Ethylbenzene--63.; 4-Methylphenol--16.2; Naphthalene--90.; Phenol--
1800.; and Xylene--900. The constituent concentrations must also be
less than the following levels (mg/l) which are the toxicity
characteristic levels: Barium--100.0; and Chromium (total)--5.0.''
D. Final Agency Decision
For the reasons stated in both the proposal and this rule, EPA's
conclusion is that GM's petitioned waste may be excluded from hazardous
waste control. EPA, therefore, is granting a final exclusion for the
WWTP sludge generated at a maximum rate of 1,500 tons per year (or
1,500 cubic yards per year) at GM's Orion Assembly Center. This
exclusion applies to the waste described in the petition only if the
requirements described in Table 1 of part 261 are satisfied.
Although management of the waste covered by this exclusion is
removed from Subtitle C jurisdiction, this exclusion applies only where
this waste is disposed of in a Subtitle D landfill which is permitted,
licensed, or registered by a State to manage municipal and/or
industrial solid waste.
III. Limited Effect of Federal Exclusion
The final exclusion being granted today is issued under the Federal
(RCRA) delisting program. States, however, are allowed to impose (non-
RCRA) regulatory requirements that are more stringent than EPA's,
pursuant to section 3009 of RCRA. These more stringent requirements may
include a provision which prohibits a Federally-issued exclusion from
taking effect in the State. Because a petitioner's waste may be
regulated under a dual system (i.e., both Federal (RCRA) and State
(non-RCRA) programs), petitioners are urged to contact the State
regulatory authority to determine the current status of their waste
under State law.
Furthermore, some States are authorized to administer a delisting
program in lieu of the Federal program (i.e., to make their own
delisting decisions). Therefore, this exclusion does not apply in those
authorized States.
[[Page 55347]]
IV. Effective Date
This rule is effective October 24, 1997. The Hazardous and Solid
Waste Amendments of 1984 amended section 3010 of RCRA to allow rules to
become effective in less than six months when the regulated community
does not need the six-month period to come into compliance. That is the
case here, because this rule reduces the existing requirements for
persons generating hazardous wastes. These reasons also provide a basis
for making this rule effective immediately, upon publication, under the
Administrative Procedure Act, 5 U.S.C. 553(d).
V. Regulatory Impact
Under Executive Order 12866, EPA must conduct an ``assessment of
the potential costs and benefits'' for all ``significant'' regulatory
actions. The effect of this rule is to reduce the overall costs and
economic impact of EPA's hazardous waste management regulations. This
reduction is achieved by excluding waste generated at a specific
facility from EPA's lists of hazardous wastes, thereby enabling this
facility to treat its waste as non-hazardous. Therefore, this rule does
not represent a significant regulatory action under the Executive
Order, and no assessment of costs and benefits is necessary. The Office
of Management and Budget (OMB) has also exempted this rule from the
requirement for OMB review under section (6) of Executive Order 12866.
VI. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612,
whenever an agency is required to publish a general notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the impact of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
No regulatory flexibility analysis is required, however, if the
Administrator or delegated representative certifies that the rule will
not have any impact on any small entities.
This rule will not have an adverse economic impact on any small
entities since its effect would be to reduce the overall costs of EPA's
hazardous waste regulations. Accordingly, I hereby certify that this
regulation will not have a significant economic impact on a substantial
number of small entities. This regulation, therefore, does not require
a regulatory flexibility analysis.
VII. Paperwork Reduction Act
Information collection and record-keeping requirements associated
with this final rule have been approved by OMB under the provisions of
the Paperwork Reduction Act of 1980 (P.L. 96-511, 44 U.S.C. 3501 et
seq.) and have been assigned OMB Control Number 2050-0053.
VIII. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA), P.L. 104-4, which was signed into law on March 22, 1995, EPA
generally must prepare a written statement for rules with Federal
mandates that may result in estimated costs to State, local, and tribal
governments in the aggregate, or to the private sector, of $100 million
or more in any one year. When such a statement is required for EPA
rules, under section 205 of the UMRA, EPA must identify and consider
alternatives, including the least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule. EPA
must select that alternative, unless the Administrator explains in the
final rule why it was not selected or it is inconsistent with law.
Before EPA establishes regulatory requirements that may significantly
or uniquely affect small governments, including tribal governments, it
must develop under section 203 of the UMRA a small government agency
plan. The plan must provide for notifying potentially affected small
governments, giving them meaningful and timely input in the development
of EPA regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising them on compliance
with the regulatory requirements. The UMRA generally defines a Federal
mandate for regulatory purposes as one that imposes an enforceable duty
upon State, local or tribal governments or the private sector. EPA
finds that today's proposed delisting decision is deregulatory in
nature and does not impose any enforceable duty upon State, local or
tribal governments or the private sector. In addition, today's
delisting decision does not establish any regulatory requirements for
small governments and so does not require a small government agency
plan under UMRA section 203.
IX. List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: October 6, 1997.
Norman R. Niedergang,
Director, Waste, Pesticides and Toxics Division.
For the reasons set out in the preamble, 40 CFR part 261 is amended
as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for Part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
2. Table 1 of Appendix IX of Part 261 is amended to add the
following waste stream in alphabetical order by facility to read as
follows:
Appendix IX to Part 261--Wastes Excluded Under Secs. 260.20 and
260.22
Table 1.--Wastes Excluded From Non-Specific Sources
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Facility Address Waste description
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* * * * * * *
General Motors Corporation..................................... Lake Orion, Michigan................................. Wastewater treatment plant
(WWTP) sludge from the chemical
conversion coating (phosphate
coating) of aluminum (EPA
Hazardous Waste No. F019)
generated at a maximum annual
rate of 1,500 tons per year (or
1,500 cubic yards per year),
after October 24, 1997 and
disposed of in a Subtitle D
landfill.
[[Page 55348]]
1. Verification Testing: GM must
implement an annual testing
program to demonstrate, based
on the analysis of a minimum of
four representative samples,
that the constituent
concentrations measured in the
TCLP (or OWEP, where
appropriate) extract of the
waste are within specific
levels. The constituent
concentrations must not exceed
the following levels (mg/l)
which are back-calculated from
the delisting health-based
levels and a DAF of 90:
Arsenic--4.5; Cobalt--189;
Copper-- 126; Nickel--63;
Vanadium--18; Zinc--900; 1,2-
Dichloroethane--0.45;
Ethylbenzene--63; 4-
Methylphenol--16.2;
Naphthalene--90; Phenol--1800;
and Xylene--900. The
constituent concentrations must
also be less than the following
levels (mg/l) which are the
toxicity characteristic levels:
Barium--100.0; and Chromium
(total)--5.0.
2. Changes in Operating
Conditions: If GM significantly
changes the manufacturing or
treatment process or the
chemicals used in the
manufacturing or treatment
process, GM may handle the WWTP
filter press sludge generated
from the new process under this
exclusion after the facility
has demonstrated that the waste
meets the levels set forth in
paragraph 1 and that no new
hazardous constituents listed
in Appendix VIII of Part 261
have been introduced.
3. Data Submittals: The data
obtained through annual
verification testing or
paragraph 2 must be submitted
to U.S. EPA Region 5, 77 W.
Jackson Blvd., Chicago, IL
60604-3590, within 60 days of
sampling. Records of operating
conditions and analytical data
must be compiled, summarized,
and maintained on site for a
minimum of five years and must
be made available for
inspection. All data must be
accompanied by a signed copy of
the certification statement in
260.22(I)(12).
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[FR Doc. 97-28274 Filed 10-23-97; 8:45 am]
BILLING CODE 6560-50-P
