[Federal Register Volume 72, Number 1 (Wednesday, January 3, 2007)]
[Rules and Regulations]
[Pages 43-49]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-22434]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-8264-7]


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

AGENCY: Environmental Protection Agency.

ACTION: Final Rule.

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SUMMARY: Environmental Protection Agency (EPA) is granting a petition 
submitted by General Motors Corporation-Arlington Truck Assembly Plant 
(GM-Arlington) to exclude (or delist) a wastewater treatment plant 
(WWTP) sludge generated by GM-Arlington in Arlington, TX from the lists 
of hazardous wastes. This final rule responds to the petition submitted 
by GM-Arlington 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 3,000 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.

EFFECTIVE DATE: January 3, 2007.

ADDRESSES: The public docket for this final rule is located at the 
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202, and is available for viewing in EPA Freedom of Information 
Act review room on the 7th floor from 9 a.m. to 4 p.m., Monday through 
Friday, excluding Federal holidays. Call (214) 665-6444 for 
appointments. The reference number for this docket is ``F-05-TXDEL-GM-
Arlington.''. The public may copy material from any regulatory docket 
at no cost for the first 100 pages and at a cost of $0.15 per page for 
additional copies.

FOR FURTHER INFORMATION CONTACT: Ben Banipal, Section Chief of the 
Corrective Action and Waste Minimization Section, Multimedia Planning 
and Permitting Division (6PD-C), Environmental Protection Agency Region 
6, 1445 Ross Avenue, Dallas, Texas 75202. For technical information 
concerning this notice, contact Youngmoo Kim, Environmental Protection 
Agency Region 6, 1445 Ross Avenue, (6PD-C), Dallas, Texas 75202, at 
(214) 665-6788, or [email protected].

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 GM-Arlington 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?
    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 GM-Arlington petition EPA to delist?
    B. How much waste did GM-Arlington propose to delist?
    C. How did GM-Arlington 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 July 19, 2005, to 
exclude the waste water treatment plant sludge from the lists of 
hazardous waste under 40 CFR 261.31 and 261.32 (see 70 FR 41358). EPA 
is finalizing the decision to grant GM-Arlington'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?

    GM-Arlington's petition requests a delisting from the F019 waste 
listing under 40 CFR 260.20 and 260.22. GM-Arlington does not believe 
that the petitioned waste meets the criteria for which EPA listed it. 
GM-Arlington 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 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 as 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 GM-Arlington's facility is based on the information 
submitted in support of this rule, including descriptions of the wastes 
and analytical data from the Arlington, Texas 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 40 CFR Part 261, Appendix IX, Table 1 
and the conditions contained herein are satisfied.

D. How will GM-Arlington manage the waste if it is delisted?

    The WWTP sludge from GM-Arlington will be disposed of in a RCRA 
Subtitle D landfill.

E. When is the final delisting exclusion effective?

    This rule is effective January 3, 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

[[Page 44]]

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. 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 the State regulatory authority 
to establish the status of their wastes under the State law.
    EPA has also authorized some states (for example, Louisiana, 
Oklahoma, Georgia, and Illinois) 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 those authorized 
states unless that state makes the rule part of its authorized program. 
If GM-Arlington transports the petitioned waste to or manages the waste 
in any state with delisting authorization, GM-Arlington must obtain 
delisting authorization from that state before it can 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 GM-Arlington petition EPA to delist?

    On September 14, 2004, GM-Arlington petitioned EPA to exclude from 
the lists of hazardous wastes contained in Sec. Sec.  261.31, WWTP 
sludge (F019) generated from its facility located in Arlington, Texas. 
The waste falls under the classification of listed waste pursuant to 
Sec.  261.31.

B. How much waste did GM-Arlington propose to delist?

    Specifically, in its petition, GM-Arlington requested that EPA 
grant a standard exclusion for 3,000 cubic yards per year of the WWTP 
sludge.

C. How did GM-Arlington sample and analyze the waste data in this 
petition?

    To support its petition, GM-Arlington submitted:
    (1) Historical information on waste generation and management 
practices;
    (2) background information and Memorandum of Understanding for the 
Michigan ECOS project;
    (3) analytical results from six samples for total concentrations of 
COCs; and
    (4) 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 General Motors Worldwide Facilities 
Group Environmental Services to correct information contained in the 
proposed rule and comments in support of granting the petition were 
submitted by the Alliance of Automobile Manufacturers.

B. What were the comments and what are EPA's responses to them?

1. Waste Disposal in Subtitle D Landfill and Other Authorized States
    Comment: GM requests that EPA clarify that GM, at its discretion, 
has the option to dispose of the waste in any Subtitle D landfill and 
is not bound to use the site Waste Management landfill. GM also 
requests that EPA clarify that an authorized state may accept EPA's 
decision or make their own determinations based upon their own review 
process. This comment was also supported by the Alliance of Automobile 
Manufacturers.
    Response: EPA does not limit the disposal of the F019 to a specific 
Subtitle D landfill. EPA states, in the exclusion language on page 
41366 of the proposed rule in Table 1, (2)(B), that GM-Arlington can 
manage and dispose of the nonhazardous WWTP sludge according to all 
applicable solid waste regulations. GM provided in its petition 
specific reference to the Waste Management, East Oak Landfill, 3201 
Mostley Road, Oklahoma City, OK 73141 as a disposal site for this 
waste. Since this disposal site is cited in the GM delisting petition 
and Oklahoma Department of Environmental Quality (ODEQ) is authorized 
for delisting, GM should consult with ODEQ regarding waste disposal and 
meet ODEQ requirements. EPA's delisting authority does not apply in 
Oklahoma. If GM decides to dispose the waste in another Subtitle D 
landfill in a state not authorized for delisting, GM must notify EPA by 
a letter regarding the disposal site which meets all applicable 
Subtitle D solid waste regulations in accordance with the notification 
requirements in paragraph (7) of the exclusion.
2. Acrylamide
    Comment: In Section III B. of the preamble, EPA states ``Acrylamide 
was a major compound of concern for other nationwide GM plants' 
petitions * * *'' GM requests that EPA qualify this statement to 
accurately reflect that the issues previously experienced regarding 
acrylamide were due to complex modeling and analytical issues and not 
tangible environmental issues.
    Response: Acrylamide is not a compound of concern (COC) for the 
waste at GM-Arlington, because it is not detected in the waste.
3. Corrections
Multiple pH Testing
    Comment: EPA incorrectly states that Multiple pH testing was 
performed on the waste.

[[Page 45]]

    Response: Multiple pH is incorrectly stated in Section III C.(5) of 
the preamble. No multiple pH testing was performed.
Table 1 Correction
    Comment: GM requests that EPA revise Table 1, Analytical Results/
Maximum Allowable Concentrations to correct an error; tetracholoethane 
to tetrachloroethylene.
    Response: We acknowledge the typographical error of 
tetrachoroethylene. However, EPA does not republish supporting tables 
from the proposed rule. Tetrachloroethylene will not be included in 
Table 1 because it is a non-detected compound and is not a COC.
    Comment: GM requests that EPA Region VI incorporate the same risk 
level used by EPA Region V for arsenic. EPA should correct the cadmium 
concentration to 0.36 mg/l. GM is unable to recreate the levels 
presented for both the inorganic and organic constituents because EPA 
has yet to make available to the public a current and corrected version 
of the DRAS model.
    Response:
     The maximum TCLP concentration of arsenic is below 
detection limit and is not a COC for GM-Arlington's delisting 
exclusion.
     The delisting level for cadmium is 0.36 mg/l and has been 
corrected in the final exclusion language.
     EPA Region 6 used DRAS Version 2.0 to evaluate risk from 
disposal of the GM-Arlington wastes. The maximum concentration levels 
we proposed for the GM-Arlington rule are based on the delisting 
process. We will provide GM with this Version of the DRAS on CD. The 
model is run at a risk level of 1 x 10-\5\ and a hazard 
quotient of 0.1. EPA Regions 5 and 6 currently use different risk level 
thresholds for calculating waste concentrations, Region 6 risk 
assessors feel confident that using the risk level and hazard quotient 
in this manner provide protective results for all Region 6 petitioners.
Web Link for Accessing DRAS
    Comment: The web link referenced in the preamble to access the DRAS 
model is incorrect. GM suggests that EPA correct this link as follows: 
http://www.epa.gov/region6/6pd/rcra_c/pd-o/dras/dras.htm.
    Response: We acknowledge the web link: http://www.epa.gov/region6/6pd/rcra_c/pd-o/dras/dras.htm is incorrect. The link to the risk 
assessment page of the Delisting Program Webpage is sometimes broken 
when updates to the web page are made. The DRAS can be accessed by 
using the Region 6 hazardous waste delisting program page as a point of 
entry. That web link is currently: http://www.epa.gov/arkansas/6pd/rcra_c/pd-o/delist.htm. The DRAS will be associated with the ``risk 
assessment'' link.
4. Data Submittal/Changes in Operating Conditions
    Comment: GM requests that EPA clarify the preamble language to 
match the language in condition (4) Changes in Operating Conditions, in 
Table 1. The condition requires EPA approval, when and if, there is a 
significant change in the waste that may or could result in a 
significant change in composition of the waste. This comment is also 
supported by the Alliance of Automobile Manufacturers.
    Response: As stated above, we do not republish preamble language. 
As GM states, the language found in the exclusion language of Appendix 
IX to Part 261--Waste Excluded Under Sec. Sec.  260.20 and 260.22. 
Table 1--Waste Excluded From Non-Specific Sources, explains what GM 
must do in cases where operating conditions change. Any changes which 
affect waste composition, waste volume, and toxicants' concentration 
levels above health-based safe criteria require notification of EPA 
whether it is a process or an equipment change in operation.
5. Table 1 Delisting Levels
    Comment: GM requests that EPA reevaluate the list of constituents 
of concern identified in the proposed conditions for the delisting. GM 
requests that 51 chemicals be removed from the list of constituents 
with corresponding delisting levels. There also 5 chemicals that were 
detected but the TCLP results were not within 2 orders of magnitude of 
the DRAS exit level. GM requests that these five chemicals be removed 
also. This comment is also supported by the Alliance of Automobile 
Manufacturers.
    Response: The undetected constituents will be removed from Table 1. 
EPA Region 6 lists all detected constituents with a corresponding 
delisting concentration level in its exclusions. If the concentrations 
ever exceed the delisting limit, they would go unmonitored because 
testing was not required for the verification and annual testing. The 
following sixteen (16) chemicals will remain in the final rule as COCs: 
(1) Acetone; (2) Ethyl Benzene; (3) n-Butyl Alcohol; (4) Toluene; (5) 
Bis(2-Ethylhexyl) Phthalate; (6) p-Cresol; (7) Naphthalene; (8) Barium; 
(9) Cadmium; (10) Chromium; (11) Cobalt; (12) Lead; (13) Nickel; (14) 
Silver; (15) Tin; and (16) Zinc.
6. Verification Testing
    Comment: The verification testing requirements as described in the 
preamble and proposed conditions for delisting are confusing and 
inconsistent with other delisting conditions for similar waste streams. 
This comment is also supported by the Alliance of Automobile 
Manufacturers.
    Response: Delistings are site-specific rule makings. The 
verification and sampling requirements for a petition will vary and be 
structured under consideration of the site specific conditions.
Initial Verification Sampling and Quarterly Sampling
    Comment: GM believes eight samples required for the initial 
sampling schedule is overly rigorous and requests that EPA remove the 
initial sampling verification requirement. GM proposes that it will 
manage the waste as hazardous until it has performed verification 
testing of one sample analyzed for ten constituents. Provided that the 
delisting levels are not exceeded, then GM may manage the waste as 
nonhazardous. This is consistent with the delisting petition issued in 
Region 5 for similar facilities. GM-Arlington will be at a competitive 
disadvantage, if it were to have to manage its wastes differently from 
those included in the Region 5 petition. This comment is also supported 
by the Alliance of Automobile Manufacturers.
    Response: Sixteen data points are necessary to perform statistical 
analysis on the data received. GM proposes in its comment to perform 
only one sample. One sample cannot be a statistical pool. EPA proposed, 
during the verification period, that 18 samples would be collected. The 
verification requirements of eight (8) initial samples, 6 samples over 
the next three quarters, in addition to the 6 samples initially 
provided was proposed so that enough data would be collected to 
complete statistical analysis of the data provided. The EPA has 
considered the comments made by GM and the requirement of eight initial 
samples will be reduced to two. The number of samples for the quarterly 
sampling will remain the same, two each quarter for the first year. EPA 
will not evaluate the data using a statistical approach; we will use 
the highest concentration of each chemical to evaluate the petition. 
The Verification Testing Language has been revised to represent the 
following: (1) Two samples taken in the first 30 days after the 
exclusion is issued; (2) The report

[[Page 46]]

provided to EPA thirty days after the samples are taken, which is 60 
days after the exclusion has been issued--Management of the waste as 
non-hazardous may begin after the EPA reviews and approves the data; 
(3) GM must then perform subsequent verification by collecting and 
analyzing two samples for each sampling event for the next three 
quarters of the first year. Quarterly reports are due to EPA within 30 
days of the sampling event; and (4) After completion of the Initial and 
Subsequent testing and notification by letter from EPA, GM will be 
required to collect one sample annually, and provide EPA with the 
results from the annual verification test within 30 days of the 
sampling event.
Initial Sludge Management
    Comment: GM requests that the Arlington, TX facility be allowed to 
manage its sludge as non-hazardous upon completion of the first 
successful verification sampling event.
    Response: As stated above, EPA Region 6 will allow GM to manage its 
waste as non-hazardous if the sludge meets the delisting levels after 
the initial verification testing.
Retesting
    Comment: GM supports the delisting conditions of Table 1, condition 
2(c) which allows GM-Arlington to collect one additional sample and 
perform expedited analysis to verify an exceedance of a delisting 
level.
    Response: While in such limited testing scenarios EPA does not 
expect a petitioned waste to fail the delisting levels, there are 
instances where anomalous results may be reported. EPA will allow a 
petitioner to retest to confirm or disprove an anomalous result.
Reduced Verification Requirements
    Comment: GM supports EPA's approach to allow GM to end the 
quarterly sampling requirement after one year of successfully 
demonstrating that the waste meets the delisting levels.
    Response: Annual sampling is required after one year of quarterly 
sampling as it states in Table 1 Condition (3)(C)(ii).
Analytical Quality Control Information
    Comment: GM requests clarification as to what information will 
satisfy the requirement in Condition (3)(A)(iii) regarding analytical 
quality control information.
    Response: EPA expects that analytical quality control information 
and the sample analysis include the data from an equipment blank, 
quality of distilled water or extraction solvent, duplicates for 
precision measurement, a spike to measure % recovery for accuracy to 
define the closeness of the true values of measured data.
7. Data Submittals/Certification Statement
    Comment: GM requests that EPA allow GM to replace the certification 
language proposed with the certification language in 40 CFR 
260.22(i)(12), consistent with other delisting petitions granted by EPA 
for similar waste streams. This comment is also supported by the 
Alliance of Automobile Manufacturers.
    Response: The certification language included in the proposed 
exclusion is consistent with the language in all EPA Region 6 
conditional exclusions. No change to this language will be made.
Other Comments and Changes in the EPA Proposed Rule for GM
    1. Page 41360, III A. There is a typographical error ``Felist''. 
This should be ``Delist''.
    2. Page 41360. Arsenic should be deleted from Table 1, since its 
concentration is below the detection limit.
    3. Page 41362. The web link to access the DRAS model should be 
corrected.
    4. Page 41362. The middle column states ``Using the risk 
level(carcinogenic risk of 10-5 and non-cancer hazard index of 1.0) * * 
*'' We use a hazard quotient for individual chemical is 0.1, assuming 
average number of chemicals on site is 10. Therefore, the wording of 
hazard index of 1.0 should be changed to hazard quotient of 0.1 because 
we are talking about the risk level of each chemical. Hazard index 
means the summation of quotients from individual non-carcinogenic 
compounds.
    5. Page 41366. For Table 1 the number of delisting sixty-six (66) 
constituents will be reduced to sixteen (16) chemicals by eliminating 
undetected chemicals.

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

[[Page 47]]

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, Reporting and 
recordkeeping requirements.

    Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f)

    Dated: December 20, 2006.
Carl E. Edlund,
Director Multimedia Planning and Permitting Division Region 6.

0
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.


0
2. In Table 1 of Appendix IX of Part 261 add the following waste stream 
in alphabetical order by facility to read as follows:

Appendix IX to Part 261--Waste Excluded Under Sec. Sec.  260.20 and 
260.22.

           Table 1.--Waste Excluded From Non-Specific Sources
------------------------------------------------------------------------
        Facility                   Address            Waste description
------------------------------------------------------------------------
 
                              * * * * * * *
General Motors..........  Arlington, TX...........   Wastewater
                                                     Treatment Sludge
                                                     (WWTP) (EPA
                                                     Hazardous Waste No.
                                                     F019) generated at
                                                     a maximum annual
                                                     rate of 3,000 cubic
                                                     yards per calendar
                                                     year after January
                                                     3, 2007 and
                                                     disposed in a
                                                     Subtitle D
                                                     landfill.
                                                    For the exclusion to
                                                     be valid, GM-
                                                     Arlington must
                                                     implement a
                                                     verification
                                                     testing program
                                                     that meets the
                                                     following
                                                     paragraphs:
                                                    (1) Delisting
                                                     Levels: All
                                                     leachable
                                                     concentrations for
                                                     those constituents
                                                     must not exceed the
                                                     following levels
                                                     (mg/l for TCLP).
                                                      (i) Inorganic
                                                    Constituents: Barium-
                                                    100; Cadmium-0.36;
                                                    Chromium-5 (3.71) ;
                                                    Cobalt-18.02; Lead-
                                                    5; Nickel-67.8;
                                                    Silver-5; Tin-540;
                                                    Zinc-673.
                                                      (ii) Organic
                                                    Constituents:
                                                    Acetone-171;
                                                    Ethylbenzene-31.9; N-
                                                    Butyl Alcohol-171;
                                                    Toluene-45.6; Bis(2-
                                                    Ethylhexyl)
                                                    Phthalate-0.27; p-
                                                    Cresol-8.55;
                                                    Naphthalene-3.11.
                                                    (2) Waste
                                                     Management: (A) GM-
                                                     Arlington must
                                                     manage as hazardous
                                                     all WWTP sludge
                                                     generated, until it
                                                     has completed
                                                     initial
                                                     verification
                                                     testing described
                                                     in paragraph (3)(A)
                                                     and (B), as
                                                     appropriate, and
                                                     valid analyses show
                                                     that paragraph(1)
                                                     is satisfied.
                                                      (B) Levels of
                                                    constituents
                                                    measured in the
                                                    samples of the WWTP
                                                    sludge that do not
                                                    exceed the levels
                                                    set forth in
                                                    paragraph (1) are
                                                    non-hazardous. GM-
                                                    Arlington can manage
                                                    and dispose of the
                                                    non-hazardous WWTP
                                                    sludge according to
                                                    all applicable solid
                                                    waste regulations.
                                                      (C) If constituent
                                                    levels in a sample
                                                    exceed any of the
                                                    delisting levels set
                                                    in paragraph (1), GM-
                                                    Arlington can
                                                    collect one
                                                    additional sample
                                                    and perform
                                                    expedited analyses
                                                    to verify if the
                                                    constituent exceeds
                                                    the delisting level.
                                                    If this sample
                                                    confirms the
                                                    exceedance, GM-
                                                    Arlington must, from
                                                    that point forward,
                                                    treat the waste as
                                                    hazardous until it
                                                    is demonstrated that
                                                    the waste again
                                                    meets the levels in
                                                    paragraph (1). GM-
                                                    Arlington must
                                                    manage and dispose
                                                    of the waste
                                                    generated under
                                                    Subtitle C of RCRA
                                                    from the time it
                                                    becomes aware of any
                                                    exceedance.
                                                      (D) Upon
                                                    completion of the
                                                    Verification Testing
                                                    described in
                                                    paragraph 3(A) and
                                                    (B), as appropriate,
                                                    and the transmittal
                                                    of the results to
                                                    EPA, and if the
                                                    testing results meet
                                                    the requirements of
                                                    paragraph (1), GM-
                                                    Arlington may
                                                    proceed to manage
                                                    its WWTP sludge as
                                                    non-hazardous waste.
                                                    If subsequent
                                                    Verification Testing
                                                    indicates an
                                                    exceedance of the
                                                    Delisting Levels in
                                                    paragraph (1), GM-
                                                    Arlington must
                                                    manage the WWTP
                                                    sludge as a
                                                    hazardous waste
                                                    until two
                                                    consecutive
                                                    quarterly testing
                                                    samples show levels
                                                    below the Delisting
                                                    Levels in paragraph
                                                    (1).
                                                    (3) Verification
                                                     Testing
                                                     Requirements: GM-
                                                     Arlington must
                                                     perform sample
                                                     collection and
                                                     analyses, including
                                                     quality control
                                                     procedures,
                                                     according to
                                                     appropriate methods
                                                     such as those found
                                                     in SW-846 or other
                                                     reliable sources
                                                     (with the exception
                                                     of analyses
                                                     requiring the use
                                                     of SW-846 methods
                                                     incorporated by
                                                     reference in 40 CFR
                                                     260.11, which must
                                                     be used without
                                                     substitution) for
                                                     all constituents
                                                     listed in paragraph
                                                     (1). If EPA judges
                                                     the process to be
                                                     effective under the
                                                     operating
                                                     conditions used
                                                     during the initial
                                                     verification
                                                     testing, GM-
                                                     Arlington may
                                                     replace the testing
                                                     required in
                                                     paragraph (3)(A)
                                                     with the testing
                                                     required in
                                                     paragraph (3)(B).
                                                     GM-Arlington Plant
                                                     must continue to
                                                     test as specified
                                                     in paragraph (3)(A)
                                                     until and unless
                                                     notified by EPA in
                                                     writing that
                                                     testing in
                                                     paragraph (3)(A)
                                                     may be replaced by
                                                     paragraph (3)(B).
                                                    (A) Initial
                                                     Verification
                                                     Testing: After EPA
                                                     grants the final
                                                     exclusion, GM-
                                                     Arlington must do
                                                     the following:
                                                      (i) Within 30 days
                                                    of this exclusion
                                                    becoming final,
                                                    collect two (2)
                                                    samples, before
                                                    disposal, of the
                                                    WWTP sludge.
                                                      (ii) The samples
                                                    are to be analyzed
                                                    and compared against
                                                    the Delisting Levels
                                                    in paragraph (1).
                                                      (iii) Within 60
                                                    days of the
                                                    exclusion becoming
                                                    final, GM-Arlington
                                                    must report to EPA
                                                    the initial
                                                    verification
                                                    analytical test data
                                                    for the WWTP sludge,
                                                    including analytical
                                                    quality control
                                                    information for the
                                                    first thirty (30)
                                                    days of operation
                                                    after this exclusion
                                                    becomes final.
                                                    If levels of
                                                     constituents
                                                     measured in these
                                                     samples of the WWTP
                                                     sludge do not
                                                     exceed the levels
                                                     set forth in
                                                     paragraph (1), GM-
                                                     Arlington can
                                                     manage and dispose
                                                     of the WWTP sludge
                                                     according to all
                                                     applicable solid
                                                     waste regulations.

[[Page 48]]

 
                                                    (B) Subsequent
                                                     Verification
                                                     Testing: Following
                                                     written
                                                     notification by
                                                     EPA, GM-Arlington
                                                     may substitute the
                                                     testing conditions
                                                     in paragraph (3)(B)
                                                     for paragraph
                                                     (3)(A). GM-
                                                     Arlington must
                                                     continue to monitor
                                                     operating
                                                     conditions, and
                                                     analyze two
                                                     representative
                                                     samples of the WWTP
                                                     sludge for the next
                                                     three quarters of
                                                     operation during
                                                     the first year of
                                                     waste generation.
                                                     The samples must
                                                     represent the waste
                                                     generated during
                                                     the quarter.
                                                     Quarterly reports
                                                     are due to EPA,
                                                     thirty days after
                                                     the samples are
                                                     taken.
                                                    After the first year
                                                     of analytical
                                                     sampling,
                                                     verification
                                                     sampling can be
                                                     performed on a
                                                     single annual
                                                     sample of the WWTP
                                                     sludge. The results
                                                     are to be compared
                                                     to the delisting
                                                     levels in paragraph
                                                     (1).
                                                    (C) Termination of
                                                     Testing:
                                                      (i) After the
                                                    first year of
                                                    quarterly testing,
                                                    if the delisting
                                                    levels in paragraph
                                                    (1) are being met,
                                                    GM-Arlington may
                                                    then request that
                                                    EPA not require
                                                    quarterly testing.
                                                      (ii) Following
                                                    cancellation of the
                                                    quarterly testing by
                                                    EPA letter, GM-
                                                    Arlington must
                                                    continue to test one
                                                    representative
                                                    sample for all
                                                    constituents listed
                                                    in paragraph (1)
                                                    annually. Results
                                                    must be provided to
                                                    EPA within 30 days
                                                    of the testing.
                                                    (4) Changes in
                                                     Operating
                                                     Conditions: If GM-
                                                     Arlington
                                                     significantly
                                                     changes the process
                                                     described in its
                                                     petition or starts
                                                     any process that
                                                     generates the waste
                                                     that may or could
                                                     significantly
                                                     affect the
                                                     composition or type
                                                     of waste generated
                                                     as established
                                                     under paragraph (1)
                                                     (by illustration,
                                                     but not limitation,
                                                     changes in
                                                     equipment or
                                                     operating
                                                     conditions of the
                                                     treatment process),
                                                     it must notify EPA
                                                     in writing; it may
                                                     no longer handle
                                                     the wastes
                                                     generated from the
                                                     new process as
                                                     nonhazardous until
                                                     the wastes meet the
                                                     delisting levels
                                                     set in paragraph
                                                     (1) and it has
                                                     received written
                                                     approval to do so
                                                     from EPA.
                                                    (5) Data Submittals:
                                                     GM-Arlington must
                                                     submit the
                                                     information
                                                     described below. If
                                                     GM-Arlington fails
                                                     to submit the
                                                     required data
                                                     within the
                                                     specified time or
                                                     maintain the
                                                     required records on-
                                                     site for the
                                                     specified time,
                                                     EPA, at its
                                                     discretion, will
                                                     consider this
                                                     sufficient basis to
                                                     reopen the
                                                     exclusion as
                                                     described in
                                                     paragraph 6. GM-
                                                     Arlington must:
                                                      (A) Submit the
                                                    data obtained
                                                    through paragraph(3)
                                                    to the Section
                                                    Chief, Region 6
                                                    Corrective Action
                                                    and Waste
                                                    Minimization
                                                    Section, EPA, 1445
                                                    Ross Avenue, Dallas,
                                                    Texas 75202-2733,
                                                    Mail Code, (6PD-C)
                                                    within the time
                                                    specified.
                                                      (B) Compile
                                                    records of operating
                                                    conditions and
                                                    analytical data from
                                                    paragraph (3),
                                                    summarized, and
                                                    maintained on-site
                                                    for a minimum of
                                                    five years.
                                                      (C) Furnish these
                                                    records and data
                                                    when EPA or the
                                                    State of Texas
                                                    requests them for
                                                    inspection.
                                                      (D) Send along
                                                    with all data a
                                                    signed copy of the
                                                    following
                                                    certification
                                                    statement, to attest
                                                    to the truth and
                                                    accuracy of the data
                                                    submitted:
                                                    ``Under civil and
                                                     criminal penalty of
                                                     law for the making
                                                     or submission of
                                                     false or fraudulent
                                                     statements or
                                                     representations
                                                     (pursuant to the
                                                     applicable
                                                     provisions of the
                                                     Federal Code, which
                                                     include, but may
                                                     not be limited to,
                                                     18 U.S.C. 1001 and
                                                     42 U.S.C. 6928), I
                                                     certify that the
                                                     information
                                                     contained in or
                                                     accompanying this
                                                     document is true,
                                                     accurate and
                                                     complete.
                                                    As to the (those)
                                                     identified
                                                     section(s) of this
                                                     document for which
                                                     I cannot personally
                                                     verify its (their)
                                                     truth and accuracy,
                                                     I certify as the
                                                     company official
                                                     having supervisory
                                                     responsibility for
                                                     the persons who,
                                                     acting under my
                                                     direct
                                                     instructions, made
                                                     the verification
                                                     that this
                                                     information is
                                                     true, accurate and
                                                     complete.
                                                    If any of this
                                                     information is
                                                     determined by EPA
                                                     in its sole
                                                     discretion to be
                                                     false, inaccurate
                                                     or incomplete, and
                                                     upon conveyance of
                                                     this fact to the
                                                     company, I
                                                     recognize and agree
                                                     that this exclusion
                                                     of waste will be
                                                     void as if it never
                                                     had effect or to
                                                     the extent directed
                                                     by EPA and that the
                                                     company will be
                                                     liable for any
                                                     actions taken in
                                                     contravention of
                                                     the company's RCRA
                                                     and CERCLA
                                                     obligations
                                                     premised upon the
                                                     company's reliance
                                                     on the void
                                                     exclusion.''
                                                    (6) Re-opener;
                                                      (A) If, anytime
                                                    after disposal of
                                                    the delisted waste,
                                                    GM-Arlington
                                                    possesses or is
                                                    otherwise made aware
                                                    of any environmental
                                                    data (including but
                                                    not limited to
                                                    leachate data or
                                                    groundwater
                                                    monitoring data) or
                                                    any other data
                                                    relevant to the
                                                    delisted waste
                                                    indicating that any
                                                    constituent
                                                    identified for the
                                                    delisting
                                                    verification testing
                                                    is at a level higher
                                                    than the delisting
                                                    level allowed by EPA
                                                    in granting the
                                                    petition, then the
                                                    facility must report
                                                    the data, in
                                                    writing, to EPA
                                                    within 10 days of
                                                    first possessing or
                                                    being made aware of
                                                    that data.
                                                      (B) If either the
                                                    quarterly or annual
                                                    testing of the waste
                                                    does not meet the
                                                    delisting
                                                    requirements in
                                                    paragraph 1, GM-
                                                    Arlington must
                                                    report the data, in
                                                    writing, to EPA
                                                    within 10 days of
                                                    first possessing or
                                                    being made aware of
                                                    that data.
                                                      (C) If GM-
                                                    Arlington fails to
                                                    submit the
                                                    information
                                                    described in
                                                    paragraphs (5),
                                                    (6)(A) or (6)(B) or
                                                    if any other
                                                    information is
                                                    received from any
                                                    source, EPA will
                                                    make a preliminary
                                                    determination as to
                                                    whether the reported
                                                    information requires
                                                    action to protect
                                                    human health and/or
                                                    the environment.
                                                    Further action may
                                                    include suspending,
                                                    or revoking the
                                                    exclusion, or other
                                                    appropriate response
                                                    necessary to protect
                                                    human health and the
                                                    environment.
                                                      (D) If EPA
                                                    determines that the
                                                    reported information
                                                    requires action, EPA
                                                    will notify the
                                                    facility in writing
                                                    of the actions it
                                                    believes are
                                                    necessary to protect
                                                    human health and the
                                                    environment. The
                                                    notice shall include
                                                    a statement of the
                                                    proposed action and
                                                    a statement
                                                    providing the
                                                    facility with an
                                                    opportunity to
                                                    present information
                                                    explaining why the
                                                    proposed EPA action
                                                    is not necessary.
                                                    The facility shall
                                                    have 10 days from
                                                    the date of EPA's
                                                    notice to present
                                                    such information.

[[Page 49]]

 
                                                      (E) Following the
                                                    receipt of
                                                    information from the
                                                    facility described
                                                    in paragraph (6)(D)
                                                    or (if no
                                                    information is
                                                    presented under
                                                    paragraph (6)(D))
                                                    the initial receipt
                                                    of information
                                                    described in
                                                    paragraphs (5),
                                                    (6)(A) or (6)(B),
                                                    EPA will issue a
                                                    final written
                                                    determination
                                                    describing the
                                                    actions that are
                                                    necessary to protect
                                                    human health and/or
                                                    the environment. Any
                                                    required action
                                                    described in EPA's
                                                    determination shall
                                                    become effective
                                                    immediately, unless
                                                    EPA provides
                                                    otherwise.
                                                    (7) Notification
                                                     Requirements: GM-
                                                     Arlington must do
                                                     the following
                                                     before transporting
                                                     the delisted waste.
                                                     Failure to provide
                                                     this notification
                                                     will result in a
                                                     violation of the
                                                     delisting petition
                                                     and a possible
                                                     revocation of the
                                                     decision.
                                                      (A) Provide a one-
                                                    time written
                                                    notification to any
                                                    state Regulatory
                                                    Agency to which or
                                                    through which it
                                                    will transport the
                                                    delisted waste
                                                    described above for
                                                    disposal, 60 days
                                                    before beginning
                                                    such activities.
                                                      (B) Update the one-
                                                    time written
                                                    notification if it
                                                    ships the delisted
                                                    waste into a
                                                    different disposal
                                                    facility.
                                                      (C) Failure to
                                                    provide this
                                                    notification will
                                                    result in a
                                                    violation of the
                                                    delisting variance
                                                    and a possible
                                                    revocation of the
                                                    decision.
 
                              * * * * * * *
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 [FR Doc. E6-22434 Filed 12-29-06; 8:45 am]
BILLING CODE 6560-50-P