[Federal Register Volume 72, Number 108 (Wednesday, June 6, 2007)]
[Rules and Regulations]
[Pages 31185-31190]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-10854]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R07-RCRA-2006-0923; FRL-8322-6]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Final Exclusion
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is granting a petition submitted by the Ford Motor Company
Kansas City Assembly Plant (Ford) to exclude (or delist) a wastewater
treatment plant (WWTP) sludge generated by Ford in Claycomo, Missouri,
from the lists of hazardous wastes. This final rule responds to the
petition submitted by Ford to delist F019 WWTP sludge generated from
the facility's waste water treatment plant.
After careful analysis and use of the Delisting Risk Assessment
Software (DRAS), EPA has concluded the petitioned waste is not
hazardous waste. This exclusion applies to 2,000 cubic yards per year
of the F019 WWTP sludge. Accordingly, this final rule excludes the
petitioned waste from the requirements of hazardous waste regulations
under the Resource Conservation and Recovery Act (RCRA) when it is
disposed in a Subtitle D Landfill.
DATES: The final rule is effective on June 6, 2007.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R07-RCRA-2006-0923. All documents in the docket are listed on
www.regulations.gov Web site. Although listed in the index, some
information is not publicly available,
[[Page 31186]]
e.g., confidential business information or other information the
disclosure of which is restricted by statute. Certain other material,
such as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
by appointment by contacting the person listed in the FOR FURTHER
INFORMATION CONTACT section below. Appointments can be made during the
hours of 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. A reasonable fee may be charged for copying docket materials.
FOR FURTHER INFORMATION CONTACT: For more information on this
rulemaking, contact Kenneth Herstowski at (913) 551-7631, or
[email protected], RCRA Corrective Action and Permits Branch, Air,
RCRA and Toxics Division, 901 North 5th Street, Kansas City, Kansas
66101.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What action is EPA finalizing?
B. Why is EPA approving this action?
C. What are the limits of this exclusion?
D. How will Ford manage the waste if it is delisted?
E. When is the final delisting exclusion effective?
F. How does this final rule affect states?
II. Background
A. What is a delisting petition?
B. What regulations allow facilities to delist a waste?
C. What information must the generator supply?
III. EPA's Evaluation of the Waste Information and Data
A. What waste did Ford petition EPA to delist?
B. How much waste did Ford propose to delist?
C. How did Ford sample and analyze the waste data in this
petition?
IV. Public Comments Received on the Proposed Exclusion
A. Who submitted comments on the proposed rule?
B. What were the comments and what are EPA's responses to them?
V. Statutory and Executive Order Reviews
I. Overview Information
A. What action is EPA finalizing?
After evaluating the petition, EPA proposed on December 20, 2006,
to exclude the waste water treatment plant sludge from the lists of
hazardous waste under 40 Code of Federal Regulations (CFR) 261.31 and
261.32 (see 71 FR 76255). EPA is finalizing the decision to grant
Ford's delisting petition to have its waste water treatment sludge
managed and disposed as non-hazardous waste provided certain
verification and monitoring conditions are met.
B. Why is EPA approving this action?
Ford's petition requests a delisting from the F019 waste listing
under 40 CFR 260.20 and 260.22. Ford does not believe that the
petitioned waste meets the criteria for which EPA listed it. Ford also
believes no additional constituents or factors could cause the waste to
be hazardous. EPA's review of this petition included consideration of
the original listing criteria and the additional factors required by
the Hazardous and Solid Waste Amendments of 1984. See section 3001(f)
of RCRA, 42 United States Code (U.S.C.) 6921(f), and 40 CFR 260.22
(d)(1)-(4) (hereinafter all sectional references are to 40 CFR unless
otherwise indicated). In making the final delisting determination, EPA
evaluated the petitioned waste against the listing criteria and factors
cited in Sec. 261.11(a)(2) and (a)(3). Based on this review, EPA
agrees with the petitioner that the waste is nonhazardous with respect
to the original listing criteria. If EPA had found, based on this
review, that the waste remained hazardous based on the factors for
which the waste was originally listed, EPA would have proposed to deny
the petition. EPA evaluated the waste with respect to other factors or
criteria to assess whether there is a reasonable basis to believe that
such additional factors could cause the waste to be hazardous. EPA
considered whether the waste is acutely toxic, the concentration of the
constituents in the waste, their tendency to migrate and to
bioaccumulate, their persistence in the environment once released from
the waste, plausible and specific types of management of the petitioned
waste, the quantities of waste generated, and waste variability. EPA
believes that the petitioned waste does not meet the listing criteria
and thus should not be a listed waste. EPA's final decision to delist
waste from Ford's facility is based on the information submitted in
support of this rule, including descriptions of the wastes and
analytical data from the Claycomo, Missouri, facility.
C. What are the limits of this exclusion?
This exclusion applies to the waste described in the petition only
if the requirements described in Sec. 261, Appendix IX, Table 1 and
the conditions contained herein are satisfied.
D. How will Ford manage the waste if it is delisted?
The WWTP sludge from Ford will be disposed of in a RCRA Subtitle D
landfill.
E. When is the final delisting exclusion effective?
This rule is effective June 6, 2007. The Hazardous and Solid Waste
Amendments of 1984 amended Section 3010 of RCRA, 42 U.S.C. 6930(b)(1),
allows rules to become effective less than six months after the rule is
published when the regulated community does not need the six-month
period to come into compliance. That is the case here because this rule
reduces, rather than increases, the existing requirements for persons
generating hazardous waste. This reduction in existing requirements
also provides a basis for making this rule effective immediately, upon
publication, under the Administrative Procedure Act, pursuant to 5
U.S.C. 553(d).
F. How does this final rule affect states?
Because EPA is issuing this exclusion under the Federal RCRA
delisting program, only states subject to Federal RCRA delisting
provisions would be affected. This would exclude states which have
received authorization from EPA to make their own delisting decisions.
EPA allows states to impose their own non-RCRA regulatory
requirements that are more stringent than EPA's, under section 3009 of
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a
provision that prohibits a Federally-issued exclusion from taking
effect in the state. If so, Ford must obtain authorization from that
state before it can transport or manage the waste as nonhazardous in
the state. Because a dual system (that is, both Federal (RCRA) and
State (non-RCRA) programs) may regulate a petitioner's waste, EPA urges
petitioners to contact each State regulatory authority to establish the
status of their wastes under the State law while it is transported or
managed as nonhazardous in the state.
EPA has also authorized some states (for example, Georgia,
Illinois, Louisiana, Nebraska, and Oklahoma) to administer a RCRA
delisting program in place of the Federal program; that is, to make
state delisting decisions. Therefore, this exclusion does not apply in
authorized states unless that state makes the rule part of its
authorized program. If Ford transports the petitioned waste to or
manages the waste in any state with delisting authorization, Ford must
obtain
[[Page 31187]]
delisting authorization from that state before it can transport or
manage the waste as nonhazardous in the state.
II. Background
A. What is a delisting petition?
A delisting petition is a request from a generator to EPA, or
another agency with jurisdiction, to exclude or delist from the RCRA
list of hazardous waste, certain wastes the generator believes should
not be considered hazardous under RCRA.
B. What regulations allow facilities to delist a waste?
Under Sec. Sec. 260.20 and 260.22, facilities may petition EPA to
remove their wastes from hazardous waste regulation by excluding them
from the lists of hazardous wastes contained in Sec. Sec. 261.31 and
261.32. Specifically, Sec. 260.20 allows any person to petition the
Administrator to modify or revoke any provision of 40 CFR Parts 260
through 265 and 268. Section 260.22 provides generators the opportunity
to petition the Administrator to exclude a waste from a particular
generating facility from the hazardous waste lists.
C. What information must the generator supply?
Petitioners must provide sufficient information to EPA 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, the Administrator must determine, where he/she has a
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 and that such factors do not
warrant retaining the waste as a hazardous waste.
III. EPA's Evaluation of the Waste Information and Data
A. What waste did Ford petition EPA to delist?
On May 31, 2006, Ford petitioned EPA to exclude from the lists of
hazardous wastes contained in Sec. 261.31, WWTP sludge (F019)
generated from its facility located in Claycomo, Missouri. The waste
falls under the classification of listed waste pursuant to Sec.
261.31.
B. How much waste did Ford propose to delist?
Specifically, in its petition, Ford requested that EPA grant a
standard exclusion for 2,000 cubic yards per year of the WWTP sludge.
C. How did Ford sample and analyze the waste data in this petition?
To support its petition, Ford submitted:
(1) Historical information on waste generation and management
practices;
(2) Analytical results from six samples for total concentrations of
constituents of concern; and
(3) Analytical results from six samples for Toxicity Characteristic
Leaching Procedure (TCLP) extract values.
IV. Public Comments Received on the Proposed Exclusion
A. Who submitted comments on the proposed rule?
Comments were submitted by Ford Motor Company requesting
clarification of certain testing requirements, the Alliance of
Automobile Manufacturers supporting the proposed delisting and the
Missouri Department of Natural Resources to correct information in the
proposed rule.
B. What were the comments and what are EPA's responses to them?
1. Revision of the F019 Listing as it Pertains to Auto Manufacturers
Comment: The Alliance of Automobile Manufacturers in its comments
urged EPA to comprehensively resolve the longstanding issue of the F019
listing as it pertains to auto manufacturers by issuing an interpretive
rule, which would exclude for the F019 classification all wastewater
treatment sludges from facilities that use zinc phosphate aluminum
processes rather than hexavalent chromium and cyanide processes that
led to the original listing of F019 sludge.
Response: EPA has proposed changes to the F019 listing that are
responsive to the commenter (see 72 FR 2219, January 18, 2007). Given
EPA's proposed rulemaking on this issue, EPA will not provide further
response here.
2. Analysis of Excluded Wastes
Comment: The Alliance of Automobile Manufacturers in its comments
requests EPA remove the requirements for analysis of total
concentrations of constituents as part of the verification testing of
Ford's delisted sludge. The commenter believes that total
concentrations of a constituent have no scientific correlation with
environmental impacts.
Response: EPA evaluates the potential environmental impact of
plausible mismanagement of the waste in a solid waste landfill. EPA
evaluates the potential off-site migration of waste particles and
volatile organic compounds via air and surface water pathways as a
result of inadequate cover and runoff control. EPA believes that
inadequate daily cover and rainwater runoff control are plausible
mismanagement scenarios for a solid waste landfill. Furthermore, since
the source of this potential off-site migration is newly deposited
waste at the surface of the landfill, total concentrations are
appropriate inputs for fate and transport modeling.
3. Delisting Levels
Toxicity Characteristic Leaching Procedure
Comment: The Missouri Department of Natural Resources comments that
as proposed Ford's sludge could exhibit a characteristic of hazardous
waste and still be excluded. Specifically, the commenter points out
that Toxicity Characteristic Leaching Procedure (TCLP) results greater
than those which would make a solid waste hazardous under 40 CFR 261.24
are allowed in the proposal.
Response: EPA reviewed the proposed TCLP delisting levels in
Appendix IX to Part 261--Waste Excluded Under Sec. Sec. 260.20 and
260.22, Table 1.--Wastes Excluded from Non-Specific Sources. The
constituents found in 40 CFR 261.24 for which TCLP delisting levels
were proposed included: barium--100 mg/l, chromium--5 mg/l, and
mercury--0.155 mg/l. All of those levels are at or below the levels at
which a solid waste would exhibit a characteristic of hazardous waste
and therefore be a hazardous waste. There may be confusion regarding
the application of these delisting levels as when the waste meets the
exclusion. EPA has clarified in the final language that the TCLP
concentrations may not equal or exceed the levels given in the table.
The commenter may also be suggesting that the exclusion should
include delisting levels for all TCLP parameters. EPA evaluated all the
constituents in Ford's waste and developed delisting levels based upon
that information. Inclusion of additional TCLP parameters is not
justified at this time. Ford must notify EPA of any significant changes
in the manufacturing process, the chemicals used, the treatment process
or the chemicals used in the treatment process. If any of those changes
occur, Ford must manage the sludge as a hazardous waste until it can be
demonstrated that it still meets the delisting levels in the exclusion,
that no new hazardous constituents listed in Appendix VIII of 40 CFR
part 261 have been introduced
[[Page 31188]]
and has received approval from EPA for the changes.
Land Disposal Restrictions and Delisting Levels
Comment: The Missouri Department of Natural Resources comments that
the delisting levels proposed do not correspond to the Land Disposal
Restriction treatment standards found in 40 CFR part 268.
Response: Ford is requesting delisting of its F019 waste at the
point of its generation. EPA's proposed exclusion was also at the point
of generation. Since the waste will be excluded at the point of its
generation (subject to periodic verification testing), the land
disposal restrictions will not apply. This is in contrast to a
hypothetical case where a hazardous waste is treated subsequent to its
generation and the residuals from the treatment of the hazardous waste
would be subject to the land disposal restrictions. If a person were to
seek delisting of the residuals in the aforementioned hypothetical
case, the land disposal restriction treatment standards for which the
original waste were subject to would continue to apply and would be
considered in determining the appropriate delisting levels.
4. Verification Sample Analysis
Comment: Ford requests clarification if the TCLP cyanides parameter
listed in the proposed exclusion for quarterly verification sampling is
a total cyanide test on the TCLP leachate. The possible options would
be amenable or available cyanide.
Response: EPA affirmed the distinction between free cyanide and
complex metal cyanides in its 1992 final rule, Drinking Water; National
Primary Drinking Water Regulations--Synthetic Organic Chemicals and
Inorganic Chemicals (57 FR 31776, July 17, 1992). EPA specifically
stated that the maximum contaminant level goal (MCLG) of 0.2 mg/L
cyanide applies to free cyanides, not complex metal cyanides. EPA
further stated that a total cyanide analytical technique is allowed to
screen samples. If the total cyanide results are greater than the MCL,
then the analysis for free cyanide would be required to determine
whether there is an exceedance of the MCL. EPA specifies the use of the
cyanide amenable to chlorination test for determining free cyanide.
Therefore, the cyanide amenable to chlorination test is the appropriate
test for verification sampling and analysis to demonstrate continued
compliance with the exclusion. Ford may use a total cyanide test for
the TCLP leachate as a screening test. However, if the results of a
total cyanide test on the TCLP leachate exceed the delisting levels and
the cyanide amenable to chlorination test is not conducted, then EPA
will rely on the total cyanide test results to determine Ford's
compliance with the exclusion.
V. Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993) this rule is not of general applicability
and therefore is not a regulatory action subject to review by the
Office of Management and Budget (OMB). This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a
particular facility only. Because this rule is of particular
applicability relating to a particular facility, it is not subject to
the regulatory flexibility provisions of the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because
this rule will affect only a particular facility, it will not
significantly or uniquely affect small governments, as specified in
section 203 of UMRA. Because this rule will affect only a particular
facility, this final rule 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, ``Federalism'' (64
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply
to this rule. Similarly, because this rule will affect only a
particular facility, this final rule does not have tribal implications,
as specified in Executive Order 13175, ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000). Thus,
Executive Order 13175 does not apply to this rule. This rule also is
not subject to Executive Order 13045, ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), 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
action present a disproportionate risk to children. The basis for this
belief is that the Agency used the DRAS program, which considers health
and safety risks to infants and children, to calculate the maximum
allowable concentrations for this rule. This rule is not subject to
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' (66 FR
28355, May 22, 2001) because it is not a significant regulatory action
under Executive Order 12866. This rule does not involve technical
standards; thus, the requirements of section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do
not apply. As required by section 3 of Executive Order 12988, ``Civil
Justice Reform'', (61 FR 4729, February 7, 1996), in issuing this rule,
EPA has taken the necessary steps to eliminate drafting errors and
ambiguity, minimize potential litigation, and provide a clear legal
standard for affected conduct. The Congressional Review Act, 5 U.S.C.
801 et seq., as added by the Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides that before a rule may take
effect, the agency promulgating the rule must submit a rule report
which includes a copy of the rule to each House of the Congress and to
the Comptroller General of the United States. Section 804 exempts from
section 801 the following types of rules: (1) Rules of particular
applicability; (2) rules relating to agency management or personnel;
and (3) rules of agency organization, procedure, or practice that do
not substantially affect the rights or obligations of non-agency
parties 5 U.S.C. 804(3). EPA is not required to submit a rule report
regarding today's action under section 801 because this is a rule of
particular applicability.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Waste
treatment and disposal.
Authority: Section 3001(f) RCRA, 42 U.S.C. 6921(f). Authority
for this action has been delegated to the Regional Administrator (61
FR 32798, June 25, 1996).
Dated: May 29, 2007.
John B. Askew,
Regional Administrator, Region 7.
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For the reasons set out in the preamble, 40 CFR part 261 is amended as
follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
0
1. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
[[Page 31189]]
0
2. In Table 1 of Appendix IX of part 261 the following wastestream is
added in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Wastes Excluded Under Sec. Sec. 260.20 and
260.22
Table 1.--Wastes Excluded From Non-Specific Sources
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Facility Address Waste description
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Ford Motor Company, Kansas City Claycomo, Missouri................. Wastewater treatment sludge, F019, that is
Assembly Plant. generated at the Ford Motor Company
(Ford) Kansas City Assembly Plant (KCAP)
at a maximum annual rate of 2,000 cubic
yards per year. The sludge must be
disposed of in a lined landfill with
leachate collection, which is licensed,
permitted, or otherwise authorized to
accept the delisted wastewater treatment
sludge in accordance with 40 CFR part
258. The exclusion becomes effective as
of June 6, 2007.
1. Delisting Levels: (a) The
concentrations in a TCLP extract of the
waste measured in any sample may not
equal or exceed the following levels (mg/
L): barium--100; chromium--5; mercury--
0.155; nickel--90; thallium--0.282; zinc--
898; cyanides--11.5; ethyl benzene--42.6;
toluene--60.8; total xylenes--18.9; bis(2-
ethylhexyl) phthalate--0.365; p-cresol--
11.4; 2,4-dinitrotoluene--0.13;
formaldehyde--343; and napthalene--.728;
(b) The total concentrations measured in
any sample may not exceed the following
levels (mg/kg): chromium 760000; mercury--
10.4; thallium--116000; 2,4-
dinitrotoluene--100000; and formaldehyde--
6880.
2. Quarterly Verification Testing: To
verify that the waste does not exceed the
specified delisting levels, Ford must
collect and analyze one representative
sample of KCAP's sludge on a quarterly
basis.
3. Changes in Operating Conditions: Ford
must notify the EPA in writing if the
manufacturing process, the chemicals used
in the manufacturing process, the
treatment process, or the chemicals used
in the treatment process at KCAP
significantly change. Ford must handle
wastes generated at KCAP after the
process change as hazardous until it has
demonstrated that the waste continues to
meet the delisting levels and that no new
hazardous constituents listed in appendix
VIII of part 261 have been introduced and
Ford has received written approval from
EPA for the changes.
4. Data Submittals: Ford must submit the
data obtained through verification
testing at KCAP or as required by other
conditions of this rule to EPA Region 7,
Air, RCRA and Toxics Division, 901 N.
5th, Kansas City, Kansas 66101. The
quarterly verification data and
certification of proper disposal must be
submitted annually upon the anniversary
of the effective date of this exclusion.
Ford must compile, summarize, and
maintain at KCAP records of operating
conditions and analytical data for a
minimum of five years. Ford must make
these records available for inspection.
All data must be accompanied by a signed
copy of the certification statement in 40
CFR 260.22(i)(12).
5. Reopener Language--(a) If, anytime
after disposal of the delisted waste,
Ford possesses or is otherwise made aware
of any data (including but not limited to
leachate data or groundwater monitoring
data) relevant to the delisted waste at
KCAP indicating that any constituent is
at a level in the leachate higher than
the specified delisting level, or is in
the groundwater at a concentration higher
than the maximum allowable groundwater
concentration in paragraph (e), then Ford
must report such data in writing to the
Regional Administrator within 10 days of
first possessing or being made aware of
that data.
(b) Based on the information described in
paragraph (a) and any other information
received from any source, the Regional
Administrator will make a preliminary
determination as to whether the reported
information requires Agency action to
protect human health or the environment.
Further action may include suspending, or
revoking the exclusion, or other
appropriate response necessary to protect
human health and the environment.
(c) If the Regional Administrator
determines that the reported information
does require Agency action, the Regional
Administrator will notify Ford in writing
of the actions the Regional Administrator
believes are necessary to protect human
health and the environment. The notice
shall include a statement of the proposed
action and a statement providing Ford
with an opportunity to present
information as to why the proposed Agency
action is not necessary or to suggest an
alternative action. Ford shall have 30
days from the date of the Regional
Administrator's notice to present the
information.
[[Page 31190]]
(d) If after 30 days Ford presents no
further information, the Regional
Administrator will issue a final written
determination describing the Agency
actions that are necessary to protect
human health or the environment. Any
required action described in the Regional
Administrator's determination shall
become effective immediately, unless the
Regional Administrator provides
otherwise.
* * * * * * *
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[FR Doc. E7-10854 Filed 6-5-07; 8:45 am]
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