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

[Federal Register: December 20, 2006 (Volume 71, Number 244)]

[Proposed Rules]

[Page 76255-76260]

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

[DOCID:fr20de06-34]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR PART 261

[EPA-R07-RCRA-2006-0923; FRL-8258-7]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

SUMMARY: The EPA (also, ``the Agency'' or ``we'' in this preamble) is proposing to grant a petition to exclude or ``delist'' wastewater treatment sludge from conversion coating on aluminum generated by the Ford Motor Company (Ford) Kansas City Assembly Plant (KCAP) in Claycomo, Missouri from the requirements of hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA). This proposed exclusion, if finalized, conditionally excludes the petitioned waste from the requirements of hazardous waste regulations under RCRA.

This petition was evaluated in a manner similar to the expedited process developed as a special project in conjunction with the Michigan Department of Environmental Quality (MDEQ) for delisting similar wastes generated by a similar manufacturing process. See 76 FR 10341, March 7, 2002. Based on an evaluation of waste-specific information provided by Ford, we have tentatively concluded that the petitioned waste from KCAP is nonhazardous with respect to the original listing criteria and that there are no other factors which would cause the waste to be hazardous. This exclusion, if finalized, would be valid only when the sludge is disposed of in a Subtitle D landfill which is permitted, licensed, or registered by a State to manage industrial solid waste.

[[Page 76256]]

DATES: We will accept public comments on this proposed rule until February 5, 2007. We will stamp comments postmarked after the close of the comment period as ``late.'' These ``late'' comments may not be considered in formulating a final decision. Any person may request a hearing on this proposed decision by filing a request with Carol Kather, Acting Director, Air, RCRA and Toxics Division, Environmental Protection Agency Region 7, 901 N. 5th St., Kansas City, Kansas, 66208. Your request for a hearing must reach EPA by January 4, 2007. The request must contain the information prescribed in Title 40 Code of Federal Regulations (40 CFR) 260.20(d).

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07- RCRA-2006-0923, by one of the following methods:

1. http://www.regulations.gov: Follow the on-line instructions for

   submitting comments.

2. E-mail: herstowski.ken@epa.gov

3. Mail: Ken Herstowski, Environmental Protection Agency, RCRA Corrective Action and Permit Branch, 901 North 5th Street, Kansas City, Kansas 66101.

4. Hand Delivery or Courier. Deliver your comments to: Ken Herstowski, Environmental Protection Agency, RCRA Corrective Action and Permit Branch, 901 North 5th Street, Kansas City, Kansas 66101.

   Instructions: Direct your comments to Docket ID No. EPA-R07-RCRA- 2006-0923. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://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 http://www.regulations.gov or e-mail. The http://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 http://www.regulations.gov, your e-mail address will be

   automatically captured and included as 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 or viruses.

   Docket. All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some

   information is not publicly available, e.g., 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 http://www.regulations.gov or in hard copy at the Environmental

   Protection Agency, RCRA Corrective Action and Permits Branch, 901 North 5th Street, Kansas City, Kansas. The hard copy RCRA regulatory docket for this proposed rule, EPA-R07-RCRA-2006-0923, is available for viewing from 8 a.m. to 5 p.m., Monday through Friday, excluding Federal holidays. The public may copy material from the regulatory docket at $0.15 per page. EPA requests that you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.

   FOR FURTHER INFORMATION CONTACT: For further technical information concerning this document or for appointments to view the docket, contact Kenneth Herstowski at the Environmental Protection Agency, RCRA Corrective Action and Permit Branch, 901 North 5th Street, Kansas City, Kansas 66101, by calling 913-551-7631 or by e-mail at herstowski.ken@epa.gov.

   SUPPLEMENTARY INFORMATION: The information in this section is organized as follows:

   1. Background

      1. What is a delisting petition?

      2. What regulations allow a waste to be delisted? II. Ford's Petition To Delist Waste From the Kansas City Assembly Plant

      1. How is the petitioned waste generated?

      2. What is the process for delisting F019 from zinc phosphating operations at automobile and light truck assembly plants?

      3. What information did Ford submit in support of its petition? III. EPA's Evaluation of This Petition

      1. How did EPA evaluate the information submitted?

      2. What did EPA conclude about this waste? IV. Proposal To Delist Waste From Kansas City Assembly Plant

      1. What is EPA proposing?

      2. What are the terms of this exclusion?

      3. What are the maximum allowable concentrations of hazardous constituents in the waste? V. Statutory and Executive Order Reviews

   1. Background

      Throughout this document whenever ``we,'' ``us,'' or ``our'' is used, we mean EPA.

      1. What is a delisting petition?

         A delisting petition is a request from a generator to exclude waste from the list of hazardous wastes under RCRA regulations. In a delisting petition, the petitioner must show that waste generated at a particular facility does not meet any of the criteria for which EPA listed the waste as set forth in 40 CFR 261.11 and the background document for the waste. In addition, a petitioner must demonstrate that the waste does not exhibit any of the hazardous waste characteristics (that is, ignitability, reactivity, corrosivity, and toxicity) and must present sufficient information for us to decide whether factors other than those for which the waste was listed warrant retaining it as a hazardous waste. (See 40 CFR 260.22, 42 United States Code (U.S.C.) 6921(f) and the background document for a listed waste.)

         A generator remains obligated under RCRA to confirm that its waste remains nonhazardous based on the hazardous waste characteristics even if EPA has ``delisted'' the waste and to ensure that future generated waste meets the conditions set.

      2. What regulations allow a waste to be delisted?

         Under 40 CFR 260.20, 260.22, and 42 U.S.C. 6921(f), a facility may petition the EPA to remove its waste from the lists of hazardous wastes contained in 40 CFR 261.31 and 261.32. Specifically, 40 CFR 260.20 allows any person to petition the Administrator to modify or revoke any provision of parts 260 through 266, 268, and 273 of 40 CFR.

   2. Ford's Petition To Delist Waste From the Kansas City Assembly Plant

      1. How is the petitioned wasted generated?

         Ford is petitioning to exclude wastewater treatment sludge resulting from a conversion coating process on truck bodies which have aluminum components. The truck bodies are

         [[Page 76257]]

         immersed in a zinc phosphate bath which applies a conversion coating on the surface of the metal. The rinses and overflows from the conversion coating process comingle with wastewaters from cleaning and rinsing operations which may include alkaline cleaners, surfactants, organic detergents and rinse conditioners. After the zinc phosphating bath, the truck bodies are subjected to an electrocoating process and spray painting. Overflows and rinse water from the electrocoating process and from the paint booths combine with the wastewater from the conversion coating before entering the wastewater treatment plant. When treated, the wastewater from the conversion coating on aluminum causes all the sludge generated from these wastewaters to be a listed waste, F019.

         In the wastewater treatment plant, large particles are screened out and the wastewater is sent to various thickeners and clarifier tanks where water and solids are further separated. The pH of the wastewater may be adjusted and flocculents and coagulants may be added to facilitate the thickening process. The solids which settle in the thickeners and clarifiers are dewatered in a filter press and the resultant F019 filter cake drops into a roll off box for disposal.

         The zinc phosphating process used today does not contain hexavalent chromium or cyanide for which F019 was originally listed, but trivalent chromium, nickel, and zinc may be present in the wastewater and in the sludge. Other hazardous constituents such as organic solvents, formaldehyde or additional metals could also be in the waste stream. Before a waste can be delisted, the petitioner must demonstrate that there are no hazardous constituents in the sludge from other operations in the plant at levels of concern and that there are no other factors that might cause the waste to be hazardous. Ford believes that its sludge does not contain the constituents for which F019 was listed and that there are no other constituents or factors that would cause the waste to remain hazardous.

      2. What is the process for delisting F019 from zinc phospating operations at automobile and light truck assembly plants?

         The zinc phosphating process used by Ford at KCAP is substantially similar to the process used at most automobile and light truck assembly plants in conversion coating steel and aluminum. A number of automobile and light truck assembly plants have been granted hazardous waste exclusions as a result of a special expedited delisting project established in a Memorandum of Understanding (MOU) between EPA Region 5 and MDEQ (67 FR 10341, March 7, 2002, and 68 FR 44652, July 30, 2003). These facilities were able to take advantage of a common sampling approach and expedited rulemaking procedure mainly due to the similarity of the wastes and processes generating the waste. Ford certified that the process generating the filter cake at KCAP is consistent with the process described in the MOU for expedited delistings.

         Using available historical data and other information, the expedited process identified 70 constituents which might be of concern in the F019 waste generated at automobile and light truck assembly plants, and a Sampling and Analysis Plan was developed specifically for testing this waste. EPA agreed to allow Ford to use the same Sampling and Analysis Plan and the same list of constituents of concern to demonstrate that the levels of constituents in the waste at KCAP are below the levels of concern that could pose a threat to human health or the environment when the waste is disposed in a nonhazardous landfill.

      3. What information did Ford submit in support of its petition?

         To support its exclusion demonstration, Ford collected six samples representing waste generated at KCAP over six weeks. All sampling was done in accordance with the Sampling and Analysis Plan developed for the expedited delisting project but modified to eliminate multiple sampling events or long term storage of full roll-off boxes. A representative amount of sludge was collected each week for six weeks starting with the week of November 1, 2005 and continuing through the week of December 12, 2005. The sludge for each week was placed in a separate 55 gallon drum, and on December 19, 2005, composite and grab samples were collected from all drums. In accordance with the Sampling and Analysis Plan, each sample was analyzed for: (1) Total volatile organic compound (VOC) analysis using SW-846 8260B with formaldehyde analysis using SW-846 8315A, semivolatile organic compound (SVOC) analysis using SW-846 8270C; (2) Toxicity Characteristic Leaching Procedure (TCLP), Method 1311 in Test Methods for Evaluating Solid Waste, Physical/Chemical Methods (SW-846) for the inorganic, VOC and SVOC constituents of concern; (3) oil and grease analysis using SW-846 1664, (4) total metals using SW-846 6010B or 6020 with mercury analysis using SW-846 7471A; (5) total constituent analysis for sulfide, SW-846 Method 9034 and reactive analysis for sulfide, SW-846 Section 7.3; and (6) total constituent analysis for cyanide, SW-846 Method 9012A and reactive analysis for cyanide, SW-846 Section 7.3. In addition, 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). The data submitted included the appropriate quality assurance/quality control information and was validated by an independent third party as required in the Sampling and Analysis Plan. The maximum values of constituents detected in any sample of the wastewater treatment sludge or in a TCLP extract of that sludge are summarized in the table below.

         Maximum concentration observed Maximum allowable delisting level (2,000 cubic

         yards) Constituent

         --------------------------------------------------- Total (mg/kg) TCLP (mg/l)

         Total (mg/kg)

         TCLP (mg/l)

         Barium......................

         220

         -\6\ or the target hazard quotient of one.

         EPA also used the DRAS program to estimate the aggregate cancer risk and hazard index for constituents detected in the waste. The aggregate cancer risk is the cumulative total of all individual constituent cancer risks. The hazard index is a similar cumulative total of non-cancer effects. The target aggregate cancer risk is 1x10 -\5\ and the target hazard index is one. The wastewater treatment sludge at KCAP met both of these criteria.

   4. Proposal To Delist Waste From Kansas City Assembly

      1. What is EPA proposing?

         Today the EPA is proposing to conditionally exclude or delist 2,000 cubic yards annually of wastewater treatment sludge generated at KCAP from conversion coating on aluminum.

      2. What are the terms of this exclusion?

         Ford must dispose of the KCAP waste in a lined Subtitle D landfill which is permitted, licensed, or registered by a state to manage industrial waste. Ford must verify on a quarterly basis that the concentrations of the constituents of concern in the KCAP sludge do not exceed the allowable levels set forth in this exclusion. The list of constituents for verification is based on the concentration and frequency of occurrence of constituents of concern in Ford's KCAP sludge and in wastes generated by the majority of facilities participating in the expedited process to delist F019. This exclusion applies only to a maximum annual volume of 2,000 cubic yards and is effective only if all conditions contained in this rule are satisfied.

      3. What are the maximum allowable concentrations of hazardous constituents in the waste?

         Concentrations of the following constituents measured in the TCLP (or OWEP, where appropriate) extract of the waste must not 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--0.728. The total concentrations in the waste of the following constituents must not exceed the following levels (mg/kg): chromium 760000; mercury--10.4; thallium--116000; 2,4-dinitrotoluene-- 100000; and formaldehyde--6880.

   5. Statutory and Executive Order Reviews

      Under Executive Order 12866, ``Regulatory Planning and Review'' (58

      [[Page 76259]]

      FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is ``significant'' and therefore subject to OMB review and the requirements of the Executive Order. It has been determined that this rule is not a ``significant regulatory action'' under the terms of Executive Order 12866 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 and does not have a significant economic impact on a substantial number of small entities, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

      This rule is not subject to sections 202, 203, 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. Therefore, EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year.

      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.

      List of Subjects in 40 CFR Part 261

      Environmental protection, Hazardous waste, Recycling, and Reporting and recordkeeping requirements.

      Authority: Sec. 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: November 16, 2006. John B. Askew, Regional Administrator, Region 7.

      For the reasons set out in the preamble, 40 CFR part 261 is proposed to be amended as follows:

      PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

1. The authority citation for part 261 continues to read as follows:

   Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

2. In Table 1 of Appendix IX 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

   Facility

   Address

   Waste description

   * * * * * * * 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 (insert final publication date). 1. Delisting Levels: (a) The concentrations in a TCLP extract of the waste measured in any sample may not 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.

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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, 66208. 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. (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. E6-21603 Filed 12-19-06; 8:45 am]

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