Solid waste: Hazardous waste; identification and listing— Exclusions,

[Federal Register: December 23, 2005 (Volume 70, Number 246)]

[Rules and Regulations]

[Page 76168-76174]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr23de05-10]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-8012-4]

Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Final Exclusion

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

SUMMARY: The Environmental Protection Agency (EPA or Agency) today is granting a petition submitted by Saturn Corporation in Spring Hill, Tennessee (Saturn) to exclude (or ``delist'') a certain hazardous waste from the lists of hazardous wastes. Saturn generates the petitioned waste, the wastewater treatment plant (WWTP) sludge, by treating wastewater from Saturn's chemical conversion coating of aluminum. The waste so generated is a wastewater treatment sludge that meets the definition of F019. Saturn petitioned EPA to grant a ``generator- specific'' delisting because Saturn believes that its F019 waste does not meet the criteria for which this type of waste was listed. EPA reviewed all of the waste-specific information provided by Saturn, performed calculations, and determined that the waste could be disposed in a landfill without harming human health and the environment. This action responds to Saturn's petition to delist this waste on a generator-specific basis from the hazardous waste lists, and to public comments on the proposed rule. EPA took into account the public comments on the proposed rule before setting the final delisting levels. Final delisting levels in the waste leachate are based on the EPA, Region 6's Delisting Risk Assessment Software. In accordance with the conditions specified in this final rule, Saturn's petitioned waste is excluded from the requirements of hazardous waste regulations under Subtitle C of the Resource Conservation and Recovery Act (RCRA).

DATES: Effective December 23, 2005.

ADDRESSES: The RCRA regulatory docket for this final rule is located at the EPA Library, U.S. Environmental Protection Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303, and is available for viewing from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. The public may copy material from this regulatory docket at $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For general and technical information concerning this final rule, please contact Kris Lippert, RCRA Enforcement and Compliance Branch (Mail Code 4WD-RCRA), U.S. Environmental Protection Agency, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303, (404) 562-8605, or call, toll free (800) 241-1754. Questions may also be e-mailed to Ms. Lippert at Lippert.kristin@epa.gov.

SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed in the following outline:

1. Background

   1. What Is a Delisting Petition?

   2. What Laws and Regulations Give EPA the Authority to Delist Wastes?

   3. What is the History of this Rulemaking? II. Summary of Delisting Petition Submitted by Saturn Corporation, Spring Hill, Tennessee (Saturn)

   1. What Waste Did Saturn Petition EPA to Delist?

   2. What Information Did Saturn Submit to Support This Petition? III. EPA's Evaluation and Final Rule

   1. What Decision Is EPA Finalizing and Why?

   2. What Are the Terms of This Exclusion?

   3. When Is the Delisting Effective?

   4. How Does This Action Affect the States? IV. Public Comments Received on the Proposed Exclusion

   1. Who Submitted Comments on the Proposed Rule?

   2. Comments and Responses From EPA V. Regulatory Impact VI. Congressional Review Act VII. Executive Order 12875

1. Background

   1. What Is a Delisting Petition?

      A delisting petition is a request made by a hazardous waste generator to exclude one or more of his/her wastes from the lists of RCRA-regulated hazardous wastes in Sec. Sec. 261.31, 261.32, and 261.33 of Title 40 of the Code of Federal Regulations (40 CFR 261.31, 261.32, and 261.33). The regulatory requirements for a delisting petition are in 40 CFR 260.20 and 260.22. EPA, Region 6 has prepared a guidance manual, Region 6 Guidance Manual for the Petitioner, which is recommended by EPA Headquarters in Washington, DC and all EPA Regions, and can be down-loaded from Region 6's Web Site at the following URL address: http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dlistpdf.htm.

   2. What Laws and Regulations Give EPA the Authority To Delist Wastes?

      On January 16, 1981, as part of its final and interim final regulations implementing section 3001 of RCRA, EPA published an amended list of hazardous wastes from non-specific and specific sources. This list has been amended several times, and is published in 40 CFR 261.31 and 261.32. These wastes are listed as hazardous because they exhibit one or more of the characteristics of hazardous wastes identified in subpart C of part 261 (i.e., ignitability, corrosivity, reactivity, and toxicity) or meet the criteria for listing contained in Sec. 261.11(a)(2) or (a)(3). Discarded commercial chemical product wastes which meet the listing criteria are listed in Sec. 261.33(e) and (f).

      Individual waste streams may vary, however, depending on raw materials, industrial processes, and other factors. Thus, while a waste that is described in these regulations generally is hazardous, a specific waste from an individual facility meeting the listing description may not be.

      For this reason, Sec. Sec. 260.20 and 260.22 provide an exclusion procedure, allowing persons to demonstrate that a specific waste from a particular generating facility should not be regulated as a hazardous waste.

      To have their wastes excluded, petitioners must show, first, that wastes generated at their facilities do not meet any of the criteria for which the wastes were listed. See Sec. 260.22(a) and the background documents for the listed wastes. Second, 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, that such factors do not warrant retaining the waste as a hazardous waste. Accordingly, a petitioner also must demonstrate that the waste does not exhibit any of the hazardous waste characteristics (i.e., ignitability, reactivity, corrosivity, and toxicity), and must present sufficient information for the EPA to determine whether the waste contains any other toxicants at hazardous levels. See Sec. 260.22(a), 42 U.S.C. 6921(f), and the background documents for the listed wastes. Although wastes which are ``delisted'' (i.e., excluded) have been evaluated to determine whether or not they exhibit any of the characteristics of hazardous waste, generators remain obligated under RCRA to determine whether or not their wastes continue to be nonhazardous based on the hazardous waste characteristics (i.e., characteristics which may be promulgated subsequent to a delisting decision.).

      In addition, residues from the treatment, storage, or disposal of listed

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      hazardous wastes and mixtures containing listed hazardous wastes are also considered hazardous wastes. See 40 CFR 261.3(a)(2)(iv) and (c)(2)(i), referred to as the ``mixture'' and ``derived-from'' rules, respectively.

      Such wastes are also eligible for exclusion and remain hazardous wastes until excluded. On December 6, 1991, the U.S. Court of Appeals for the District of Columbia vacated the ``mixture/derived-from'' rules and remanded them to the EPA on procedural grounds. Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). On March 3, 1992, EPA reinstated the mixture and derived-from rules, and solicited comments on other ways to regulate waste mixtures and residues (57 FR 7628). These rules became final on October 30, 1992 (57 FR 49278), and should be consulted for more information regarding waste mixtures and solid wastes derived from treatment, storage, or disposal of a hazardous waste. The mixture and derived-from rules are codified in 40 CFR 261.3 (b)(2) and (c)(2)(i). EPA plans to address waste mixtures and residues when the final portion of the Hazardous Waste Identification Rule (HWIR) is promulgated. On October 10, 1995, the Administrator delegated to the Regional Administrators the authority to evaluate and approve or deny petitions submitted in accordance with Sec. Sec. 260.20 and 260.22 by generators within their Regions (National Delegation of Authority 8-19) in States not yet authorized to administer a delisting program in lieu of the Federal program. On March 11, 1996, the Regional Administrator of EPA, Region 4, redelegated delisting authority to the Director of the Waste Management Division (Regional Delegation of Authority 8-19).

   3. What Is the History of This Rulemaking?

      Saturn manufactures Saturn automobiles, and is seeking a delisting for the WWTP sludge generated from conversion coating on aluminum. The WWTP sludge does not meet a hazardous waste listing definition when steel-only automobile bodies are manufactured. However, the wastewater treatment sludge generated at automobile manufacturing plants where aluminum is used as a component of automobile bodies, meets the listing definition F019 in Sec. 261.31.

      Saturn petitioned EPA, Region 4, on December 13, 2004, to exclude this F019 waste on a generator-specific basis from the lists of hazardous wastes in 40 CFR part 261, subpart D.

      The hazardous constituents of concern for which F019 was listed are hexavalent chromium and cyanide (complexed). Saturn petitioned the EPA to exclude its F019 waste because Saturn does not use either of these constituents in the manufacturing process. Therefore, Saturn does not believe that the waste meets the criteria of the listing. Saturn claims that its F019 waste will not be hazardous because the constituents of concern for which F019 is listed will be present only at low concentrations and will not leach out of the waste at significant concentrations. Saturn also believes that this waste will not be hazardous for any other reason (i.e., there will be no additional constituents or factors that could cause the waste to be hazardous). Review of this petition included consideration of the original listing criteria, as well as the additional factors required by the Hazardous and Solid Waste Amendments (HSWA) of 1984. See section 222 of HSWA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(2)-(4). As a result of the EPA's evaluation of Saturn's petition, the Agency is granting a delisting to Saturn with conditions described below, on December 23, 2005. Today's rulemaking addresses public comments received on the proposed rule and finalizes the proposed decision to grant Saturn's petition for delisting.

2. Summary of Delisting Petition Submitted by Saturn Corporation, Spring Hill, Tennessee (Saturn)

   1. What Waste Did Saturn Petition EPA to Delist?

      Saturn petitioned EPA, Region 4, on December 13, 2004, to exclude a maximum annual weight of 3,000 cubic yards of its F019 waste, on a generator-specific basis, from the lists of hazardous wastes in 40 CFR part 261, subpart D. Saturn manufactures Saturn automobiles, and is seeking a delisting for the WWTP sludge that will be generated by treating wastewater from Saturn's chemical conversion coating of aluminum.

   2. What Information Did Saturn Submit To Support This Petition?

      In support of its petition, also described in the proposed rule on August 31, 2005 (see 70 FR 51696-51705, August 31, 2005), Saturn has submitted laboratory analysis of its WWTP sludge. The laboratory analysis submitted includes the following: (1) Analysis performed on samples of its dewatered WWTP sludge taken and analyzed by EPA (2) analysis of the dewatered WWTP sludge performed by Saturn on split samples provided to the facility by EPA and (3) analysis of the dewatered WWTP sludge performed by Saturn on samples taken by the facility.

      The analysis performed by Saturn on the split samples of the WWTP sludge provided to the facility by EPA was submitted for laboratory testing for the entire 40 CFR part 264 Appendix IX constituent list (including volatile organic compounds (VOCs), semi-volatile organic compounds (SVOCs), metals, and PCBs) and hexavalent chromium, TCLP metals, cyanide, and total solids. Based on the laboratory data, data validation results, and Saturn's communications with the EPA, Saturn prepared a Sampling and Analysis Plan which was submitted to the EPA and approved.

      In accordance with the approved Sampling and Analysis Plan and to support its petition, Saturn collected additional WWTP sludge samples for laboratory testing. The samples were collected from six roll-off containers representing waste generated at Saturn over a seven-week period. The samples were analyzed as follows: (1) Samples for VOC analyses (total and TCLP) were collected from six roll-off containers. The first sample was analyzed for the 40 CFR part 264 Appendix IX VOC constituent list (total and TCLP). VOCs (total and TCLP) detected in the first sample were tested in the samples collected from the second through the sixth roll-off containers. (2) Samples from the six roll- off containers were analyzed for total and TCLP bis(2- ethylhexyl)phthalate. (3) Samples from the six roll-off containers were analyzed for total and TCLP metals (antimony, arsenic, barium, beryllium, chromium, cobalt, copper, lead, mercury, nickel, thallium, tin, vanadium, and zinc) and for hexavalent chromium. (4) Samples from the six roll-off containers were analyzed for corrosivity, total and TCLP cyanide, ignitability, sulfide, oil and grease, and total solids. The Toxicity Characteristic Leaching Procedure (TCLP), SW-846 Method 1311, was used as the extraction procedure for testing the volatile and semi-volatile constituents of concerns. Leachable metals were tested using the Extraction Procedure for Oily Wastes (OWEP), SW-846 Method 1330A. The pH of each sample was measured using SW-846 Method 9045C, and a determination was made that the waste was not ignitable, corrosive, or reactive (see 40 CFR 261.21-261.23). Oil and grease was analyzed using SW-846 Method 9071B, total sulfide was tested using SW- 846 Method 9034, and total cyanide was performed using Method SW-846 Method 9012A.

      Composite and grab samples of dewatered WWTP sludge were collected

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      in accordance with the approved Sampling and Analysis Plan on August 19, 2004 and submitted for laboratory testing.

      Upon receipt of the laboratory testing results, the data was validated by a third party. The maximum values of constituents detected in any sample of the WWTP sludge or in a TCLP extract of the WWTP sludge are summarized in Table 1.

      Table 1.--Maximum Total and TCLP Concentrations in the Dewatered WWTP Sludge and Corresponding Delisting Limits

      Maximum concentration observed\1\

      Maximum allowable delisting level (3,000 cubic yards) Constituent

      Maximum allowable groundwater Total (mg/kg)

      TCLP (mg/l)

      Total (mg/kg)

      TCLP (mg/l)

      concentration ([mu]g/l)

      Volatile Organic Compounds

      Acetone..........................