[Federal Register Volume 74, Number 214 (Friday, November 6, 2009)]
[Rules and Regulations]
[Pages 57418-57424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26837]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R05-RCRA-2009-0747; SW-FRL-8972-9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA (also, ``the Agency'' or ``we'' in this preamble) is 
granting a petition to exclude (or ``delist'') wastewater treatment 
plant sludges from conversion coating on aluminum generated at the 
Sterling Heights Assembly Plant (SHAP), Sterling Heights, Michigan from 
the list of hazardous wastes. SHAP is owned by Old Carco LLC (formerly 
Chrysler LLC, formerly DaimlerChrysler) and operated by Chrysler Group 
LLC.
    This action conditionally excludes the petitioned waste from the 
requirements of hazardous waste regulations under the Resource 
Conservation and Recovery Act (RCRA) when disposed of in a lined 
Subtitle D landfill which is permitted, licensed, or registered by a 
State to manage industrial solid waste. The exclusion was proposed on 
March 7, 2002 as part of an expedited process to evaluate this waste 
under a pilot project developed with the Michigan Department of 
Environmental Quality (MDEQ). The rule also imposes testing conditions 
for waste generated in the future to ensure that this waste continues 
to qualify for delisting.

DATES: This rule is effective on November 6, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-RCRA-2009-0747. The electronic docket contains all relevant 
documents created after this action was proposed as well as a selection 
of pertinent documents from the original paper docket for the proposed 
rule, Docket ID No. R5-MIECOS-01. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. All documents in the 
electronic docket are listed on the http://www.regulations.gov Web 
site. Publicly available materials from Docket ID No. EPA-R05-RCRA-
2009-0747 are available either electronically through http://www.regulations.gov or in hard copy. Materials from the original paper 
docket, Docket ID No. R5-MIECOS-01, are also available in hard copy. 
You can view and copy materials from both dockets at the Records 
Center, 7th floor, U.S. EPA Region 5, 77 West Jackson Blvd., Chicago, 
Illinois 60604. This facility is open from 8:30 am to 4:00 pm, Monday 
through Friday, excluding legal holidays. We recommend you telephone 
Todd Ramaly at (312) 353-9317 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Todd Ramaly, Land and Chemicals 
Division, (Mail Code: LR-8J), EPA Region 5, 77 W. Jackson Blvd., 
Chicago, IL 60604; telephone number: (312) 353-9317; fax number: (312) 
353-4788; e-mail address: [email protected].

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

I. Background
    A. What is a delisting petition?
    B. What regulations allow a waste to be delisted?
    C. What waste did SHAP petition to delist?
II. The Expedited Process for Delisting
    A. Why was the expedited process developed for this waste?
    B. What is the expedited process to delist F019?
III. EPA's Evaluation of This Petition
    A. What information was submitted in support of this petition?
    B. How did EPA evaluate the information submitted?
IV. Public Comments Received on the Proposed Exclusion
    A. Who submitted comments on the proposed rule?
    B. Comments Received and Responses From EPA
V. Final Rule Granting This Petition
    A. What decision is EPA finalizing?
    B. What are the terms of this exclusion?
    C. When is the delisting effective?
    D. How does this action affect the states?
VI. Statutory and Executive Order Reviews

I. Background

A. 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 Title 40 Code of Federal Regulations 
(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 documents for a 
listed waste.
    Generators remain obligated under RCRA to confirm that their waste 
remains nonhazardous based on the hazardous waste characteristics even 
if EPA has ``delisted'' the wastes and to ensure that future generated 
wastes meet the conditions set.

B. What regulations allow a waste to be delisted?

    Under 40 CFR 260.20, 260.22, and 42 U.S.C. 6921(f), facilities may 
petition the EPA to remove their wastes from hazardous waste control by 
excluding them 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

[[Page 57419]]

260 through 266, 268, and 273 of 40 CFR. 40 CFR 260.22 provides a 
generator the opportunity to petition the Administrator to exclude a 
waste from the lists of hazardous wastes on a ``generator specific'' 
basis.

C. What waste did SHAP petition to delist?

    SHAP petitioned to exclude wastewater treatment sludges resulting 
from a zinc phosphating conversion coating process on car and truck 
bodies, which have aluminum components. When treated, wastewater from 
conversion coating on aluminum results in a listed waste, F019. The 
wastewater from the phosphating process entering the wastewater 
treatment plant combines with wastewaters from other operations at the 
plant including cleaning and rinsing operations, electrocoating 
processes, vehicle leak testing, and floor scrubbing. Wastewaters 
include alkaline cleaners, surfactants, organic detergents, rinse 
conditioners from cleaning operations and overflows and rinse water 
from electrocoating. All sludge from the treatment of this wastewater 
is regulated as RCRA hazardous waste F019.

II. The Expedited Process for Delisting

A. Why was the expedited process developed for this waste?

    Automobile manufacturers are adding aluminum components to 
automobile and light truck bodies. When aluminum is conversion coated 
in a zinc phosphating process, the resulting wastewater treatment 
sludge must be managed as EPA hazardous waste F019. F019 wastes 
generated at other auto assembly plants using the same zinc phosphating 
and wastewater treatment processes have been shown to be nonhazardous.
    This similarity of manufacturing processes and the resultant wastes 
provides an opportunity for the automobile industry to be more 
efficient in submitting delisting petitions and for EPA to be more 
efficient in evaluating them. Efficiency may be gained and time saved 
by using a standardized approach for gathering, submitting and 
evaluating data. Therefore, EPA, in conjunction with MDEQ, developed a 
pilot project to expedite the delisting process. This approach to 
making delisting determinations for this group of facilities is 
efficient while still being consistent with current laws and 
regulations and protective of human health and the environment.
    By removing regulatory controls under RCRA, EPA is facilitating the 
use of aluminum in cars. EPA believes that incorporating aluminum in 
cars will be advantageous to the environment since lighter cars are 
capable of achieving better fuel economy.

B. What is the expedited process to delist F019?

    The expedited process to delist F019 is an approach developed 
through a Memorandum of Understanding (MOU) with MDEQ for gathering and 
evaluating data in support of multiple petitions from automobile 
assembly plants. The expedited delisting process is applicable to 
wastes generated by automobile and light truck assembly plants in the 
State of Michigan which use a similar manufacturing process and 
generate similar F019 waste.
    Based on available historical data and other information, the 
expedited process identified 70 constituents which might be of concern 
in the waste and provides that the F019 sludge generated by automobile 
assembly plants may be delisted if the levels of the 70 constituents do 
not exceed the allowable levels established for each constituent in 
this rulemaking. The maximum annual quantity of waste generated by any 
single facility that may be covered by an expedited delisting is 3,000 
cubic yards. Delisting concentrations were also proposed for smaller 
quantities of 1,000 and 2,000 cubic yards per year.

III. EPA's Evaluation of This Petition

A. What information was submitted in support of this petition?

    SHAP submitted certification that its process was consistent with 
the process described in the MOU between Region 5 and MDEQ. See 67 FR 
10341, March 7, 2002. One additional non-chromium sealer was identified 
by SHAP. Based on the provided Material Safety Data Sheet (MSDS), the 
additional sealer does not appear to add new hazardous constituents to 
the process. The facility also asserted that its waste does not meet 
the criteria for which F019 waste was listed and there are no other 
factors that might cause the waste to be hazardous.
    To support its exclusion demonstration, SHAP collected six samples 
representing waste generated over six discreet one-week periods 
beginning March 7 and ending April 17, 2007. SHAP stored six 55-gallon 
drums of the sludge representative of each week the waste was generated 
and collected composite and grab samples from each of the drums on 
April 18, 2007. Each sample was analyzed for: (1) Total analyses of 69 
constituents of concern; (2) Toxicity Characteristic Leaching Procedure 
(TCLP), SW-846 Method 1311, analyses of 69 constituents of concern; (3) 
oil and grease; and (4) leachable metals using the Extraction Procedure 
for Oily Wastes (OWEP), SW-846 Method 1330A, in lieu of Method 1311 if 
a sample contained more than 1% oil and grease. In addition, a 
determination was made that the waste was not ignitable, corrosive or 
reactive (see 40 CFR 261.21-261.23). Although the expedited delisting 
project originally required analysis of 70 constituents, analysis of 
acrylamide required extreme methods to achieve a detection level at the 
level of concern and no acrylamide was detected in any sample analyzed 
by the original facilities participating in the expedited delisting 
project. Thus, the Agency decided it would not be appropriate to 
require analysis for acrylamide. Also, SHAP analyzed for total sulfide 
and total cyanide which supported the narrative determination of non-
reactivity required in 40 CFR 261.23. With the exception of the minor 
changes described above, all sampling and analyses were done in 
accordance with the sampling and analysis plan, which is an appendix to 
the MOU and is available in the docket for this rule.
    The maximum concentrations of constituents detected in any sample 
of the waste (in milligrams per kilogram--mg/kg) and in a TCLP or OWEP 
analysis of that waste (in milligrams per liter--mg/L) are summarized 
in the following table. The data submitted included the appropriate 
quality assurance and quality control (QA/QC) information validated by 
a third party.

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                                  Maximum observed concentration         Maximum allowable
                                 --------------------------------          concentration
      Constituent detected                                       --------------------------------  GW  ([mu]g/L)
                                   Total (mg/kg)    TCLP (mg/L)    Total (mg/kg)  TCLP\*\ (mg/L)
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                                           Volatile Organic Compounds
----------------------------------------------------------------------------------------------------------------
Acetone.........................           2.7 J          0.38 J              NA             171           3,750

[[Page 57420]]

 
Acetonitrile....................            <2.5        0.0012 J              NA            29.3             643
Benzene.........................          0.14 J          0.0095              NA       \1\ 0.057             2.5
Butanol.........................             <25          0.15 J              NA             171           3,758
Chloroform......................            <0.5         0.002 J           5,080          0.0583            1.35
Ethylbenzene....................           0.3 J          0.0093              NA            31.9             700
Formaldehyde....................              37             1.8             535              63           1,380
methyl ethyl ketone.............            <2.5         0.021 J              NA             200          22,545
methyl isobutyl ketone..........            <2.5         0.023 J              NA             137           3,000
methylene chloride..............          0.56 J          0.0056              NA           0.216               5
Styrene.........................            <0.5          0.0074              NA            4.56             100
Toluene.........................             2.0            0.12              NA            45.6           1,000
Xylene..........................             3.0           0.059              NA             456          10,000
----------------------------------------------------------------------------------------------------------------
                                         Semivolatile Organic Compounds
----------------------------------------------------------------------------------------------------------------
bis(2-ethylhexyl)phthalate......           8.5 J       0.00072 J              NA          0.0671            1.47
butyl benzyl phthalate..........            <7.5       0.00023 J              NA            69.6           1,448
2,4-dinitrotoluene..............            <1.5         0.00002              NA          0.0049           0.107
di-n-octyl phthalate............           3.3 J          <0.002              NA          0.0839           1.296
Hexachlorobenzene...............          <0.013         0.00002            1.12       0.0000724         0.00168
Hexachlorobutadiene.............            <1.5         0.00002             212          0.0072           0.167
Naphthalene.....................          0.36 J          0.0041              NA     \2\ 0.00822             245
2-methylphenol..................            <1.5           0.002              NA            85.5           1,870
4-methylphenol..................            <1.5          0.12 J              NA            8.55             187
Pentachlorophenol...............            <1.5           0.002           1,960     \3\ 0.00607           0.071
Pyridine........................            <3.0       0.00098 J              NA            1.71          37.575
2,4,5-trichlorophenol...........          0.21 J          <0.001              NA            68.6           1,503
2,4,6-trichlorophenol...........          0.68 J          <0.001              NA           0.207             4.8
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                                                     Metals
----------------------------------------------------------------------------------------------------------------
Antimony........................             <20        0.0028 J              NA           0.494               6
Arsenic.........................             <50        0.0051 J           7,740         0.00224            4.87
Barium..........................              77          0.11 J              NA             100           2,000
Beryllium.......................         0.074 J        0.0006 J              NA           0.998              40
Cadmium.........................             1.6        0.0074 J              NA            0.36               5
Chromium........................              76         0.024 J              NA            3.71             100
Cobalt..........................             3.5        0.0068 J              NA              54           2,248
Lead............................             5.1           <0.16              NA             5.0              15
Mercury.........................          0.0091       <0.0009 J            6.34             0.2               2
Nickel..........................             840             8.5              NA            67.8             750
Selenium........................             <20        0.0028 J              NA             1.0              50
Silver..........................             2.5           <0.06              NA             5.0             187
Thallium........................             <20        0.0003 J         \4\ 247           0.211               2
Tin.............................           250 J             6.1              NA             540          22,476
Vanadium........................           1.8 J           <0.05              NA            50.6             263
Zinc............................           5,500             5.6              NA             673          11,220
----------------------------------------------------------------------------------------------------------------
* Or OWEP as applicable.
< Not detected at the specified concentration.
NA Not applicable.
J Estimated.
\1\ Proposed maximum concentration (0.109 mg/L) adjusted for updated toxicity data.
\2\ Proposed maximum concentration (11.2 mg/L) adjusted for inhalation carcinogenicity.
\3\ Proposed maximum concentration (0.00307 mg/L) adjusted due to exposure time correction.
\4\ Maximum total (247 mg/kg) replacing proposed ``NA'' due to bioaccumulation factor entry.

B. How did EPA evaluate the information submitted?

    EPA compared the analytical results submitted by SHAP to the 
maximum allowable concentrations set forth in the proposed rule (67 FR 
10341, March 7, 2002) or as updated below. The maximum allowable 
concentrations for constituents detected in the waste or a TCLP extract 
of the waste are summarized in the table above, along with the highest 
observed concentration. The table also includes the maximum allowable 
concentrations in groundwater at a potential receptor well (in 
micrograms per liter--[mu]g/L), as evaluated by the Delisting Risk 
Assessment Software (DRAS). These concentrations are the more 
conservative of either the Safe Drinking Water Act Maximum Contaminant 
Level (MCL) or the health-based value calculated by DRAS based on the 
target cancer risk level of 10-\6\. For arsenic, the target 
cancer risk was set at 10-\4\ in consideration of the MCL 
and the potential for natural occurrence. The maximum allowable 
groundwater concentration and delisting level for arsenic correspond to 
a drinking water concentration less than one-half the current MCL of 10 
[mu]g/L.
    Some of the maximum allowable concentrations have been updated to 
reflect new toxicity data or in response

[[Page 57421]]

to a technical correction in the modeling. Specifically, the maximum 
allowable leachate concentration for benzene was adjusted from 0.109 
mg/L to 0.057 mg/L because the cancer slope factor for oral exposure 
was increased from 0.029 kg[middot]day/mg to 0.055 kg[middot]day/mg. 
The maximum allowable leachate concentration for naphthalene was 
adjusted from 11.2 mg/L to 0.00822 mg/L due to adding an inhalation 
calculation for carcinogenicity. The maximum allowable leachate 
concentration for pentachlorophenol was adjusted from 0.00307 mg/L to 
0.00607 to reflect a correction to exposure time in the dermal pathway 
for children. A maximum allowable total concentration of 247 mg/kg for 
thallium was added after the database was adjusted to include 
bioaccumulation and ingestion of thallium in fish.
    EPA also used DRAS 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 plant sludge at SHAP met both of 
these criteria based on maximum observed values using DRAS version 2, 
the version in use when the SHAP waste samples were collected. A new 
version of DRAS (version 3) has been released with current toxicity 
data and extensive modeling updates. Although EPA did not base the 
evaluation of SHAP waste on the new DRAS methodology, a screening of 
the maximum observed concentrations with the new DRAS version showed 
that the aggregate hazard index and cancer risks remain below target 
levels.

IV. Public Comments Received on the Proposed Exclusion

A. Who submitted comments on the proposed rule?

    The EPA received public comments on the proposed rule published on 
March 7, 2002 from Alliance of Automobile Manufacturers, Honda of 
America Mfg., Inc., Alcoa Inc., and The Aluminum Association. All 
commenters were supportive of the proposal and suggested expanding the 
project and revising the listing.

B. Comments Received and Responses From EPA

    (1) Comment: EPA should revise the F019 listing to specify that 
wastewater treatment sludges from zinc phosphating operations are not 
within the scope of the listing. Data gathered as a result of the 
Expedited Delisting Project, together with the available historical 
data, should provide enough data to fully characterize this waste and 
to justify a revision of the listing.
    EPA Response: On June 4, 2008 (73 FR 31756), the Agency amended the 
F019 listing to exempt the wastewater treatment sludge generated from 
zinc phosphating, when zinc phosphating is used, in the automobile 
assembly process and provided the waste is disposed in a landfill unit 
subject to certain design criteria. The amendment has yet to be adopted 
by the State of Michigan. The SHAP facility will likely be able to 
comply with either the amended listing or the requirements of this 
delisting.
    (2) Comment: EPA should issue an interpretive rule clarifying that 
zinc phosphating operations are outside the scope of the F019 listing.
    EPA Response: See response to comment (1) above.
    (3) Comment: Automobile assembly facilities outside of Michigan 
would like to take advantage of the precedent set by this expedited 
delisting project to delist F019 generated by similar operations in 
other states and regions.
    EPA Response: The Agency believes that the expedited delisting 
procedures and requirements set forth in this proposal are appropriate 
for similar automotive assembly facilities outside the State of 
Michigan, subject to the discretion of the regulatory agency (state or 
region).
    (4) Comment: Alternatives to landfilling like recycling should be 
allowed within the petition process.
    EPA Response: The risk assessment model currently used by the 
Agency does not predict the risks from exposure to waste that are 
managed through recycling. EPA's conditional delisting policy is that 
in order to reduce the uncertainty caused by potential unrestricted use 
or management of delisted waste, delistings apply only to wastes 
managed in the type of unit (e.g., ``a landfill'') modeled in the 
delisting risk assessment. The Agency has no documented information to 
indicate a market exists for recovering the metals in F019 waste from 
motor vehicle manufacturers. See 73 FR 31756, 31762 (June 4, 2008). The 
Agency notes that the exclusion is conditioned upon certain disposal, 
sampling, and volume requirements. While the conditional exclusion 
being promulgated today does not eliminate the possibility of 
legitimate reuse of the sludge, the final rule does not address such 
use.
    (5) Comment: Analytical methods should be specified in the pre-
approved common sampling plan instead of requiring each participant to 
submit a site-specific list of methods.
    EPA Response: Allowing the petitioner to choose an analytical 
method which meets the data quality objectives specific to the 
delisting petition provides flexibility. Data quality objectives will 
vary depending on the allowable concentrations that are a function of 
the volume of petitioned waste. The Agency believes that the 
flexibility of performance-based methods results in better data.
    (6) Comment: Detection limits should not be required prior to 
sampling since they cannot be adequately predicted without a way to 
estimate matrix effects.
    EPA Response: Although matrix effects cannot be assessed in advance 
of laboratory analysis, a laboratory should be able to provide 
estimated detection levels and reporting levels which are lower than, 
or at least equal to, the allowable delisting concentration for each 
constituent.
    (7) Comment: Since the process generating the sludge is extremely 
stable, verification sampling should be conducted on an annual, instead 
of quarterly, basis. The requirement that any process change is 
promptly reported and the exclusion suspended until EPA gives written 
approval that the delisting can continue is an adequate safeguard 
justifying the decrease in sample event frequency.
    EPA Response: Verification data submitted in conjunction with past 
delistings of this waste have shown significant variation on a 
quarterly basis over longer periods of time. Annual sampling would not 
detect such variations. Once enough verification data are collected to 
support a statistical analysis, a change in the frequency of 
verification sampling and/or sampling parameters may be considered.
    (8) Comment: The final Federal Register should make it clear that 
assembly plants that manufacture light trucks are also eligible for the 
project.
    EPA Response: Today's final rule specifically defines eligible 
facilities as inclusive of manufacturers of light trucks.
    (9) Comment: The table of maximum allowable levels in the March 7, 
2002 proposed rule contains errors in the columns for vinyl chloride.
    EPA Response: A missing space or tab in the table caused the error. 
The maximum allowable concentrations proposed for 2,000 cubic yards of 
waste should have been 115 mg/kg total and 0.00234 mg/L TCLP.

[[Page 57422]]

V. Final Rule Granting This Petition

A. What decision is EPA finalizing?

    Today the EPA is finalizing an exclusion to conditionally delist an 
annual volume of 3,000 cubic yards of wastewater treatment plant 
sludges generated at SHAP from conversion coating on aluminum.
    On March 7, 2002, EPA proposed to exclude or delist this wastewater 
treatment sludge from the list of hazardous wastes in 40 CFR 261.31 and 
accepted public comment on the proposed rule (67 FR 10341). EPA 
considered all comments received, and we believe that this waste should 
be excluded from hazardous waste control. After EPA proposed the 
exclusion for SHAP in 2002, the Agency promulgated the Methods 
Innovation Rule (MIR) (70 FR 34538, June 14, 2005). The MIR reformed 
RCRA-related testing and monitoring by restricting requirements to use 
the methods found in ``Test Methods for Evaluating Solid Waste, 
Physical/Chemical Methods,'' also known as ``SW-846,'' to those 
situations where the method is the only one capable of measuring the 
property (i.e., it is used to measure a method-defined parameter). In 
addition, the MIR revised several conditional delistings to 
specifically mention method-defined parameters incorporated by 
reference at Sec.  260.11 consistent with the Office of Federal 
Register's revised format for incorporation by reference. Therefore, 
EPA is including a specific reference to SW-846 Methods 1311, 1330A, 
and 9071B (method-defined parameters) for the generation of the 
leachate extract in the quarterly verification testing requirement for 
the SHAP delisting. SW-846 Method 1311 must be used for generation of 
the leachate extract used in the testing of the delisting levels if oil 
and grease comprise less than 1% of the waste. SW-846 Method 1330A must 
be used for generation of the leaching extract if oil and grease 
comprise 1% or more of the waste. SW-846 Method 9071B must be used for 
determination of oil and grease. SW-846 Methods 1311, 1330A, and 9071B 
are incorporated by reference in 40 CFR 260.11.

B. What are the terms of this exclusion?

    SHAP must dispose of the waste in a lined Subtitle D landfill which 
is permitted, licensed, or registered by a state to manage industrial 
solid waste. SHAP must obtain and analyze on a quarterly basis a 
representative sample of the waste. SHAP must verify that the 
concentrations of the constituents of concern do not exceed the 
allowable concentrations set forth in this exclusion. The list of 
constituents for verification is a subset of those initially tested for 
and is based on the concentrations detected relative to the allowable 
concentrations. Two of the constituents selected for verification 
required extraordinary analytical methods in order to achieve detection 
limits at or below the delisting concentrations. Hexachlorobenzene and 
pentachlorophenol are not expected to be significant components of the 
petitioned waste, and standard analysis for verification will suffice.
    This exclusion applies only to a maximum annual volume of 3,000 
cubic yards and is effective only if all conditions contained in this 
rule are satisfied.

C. When is the delisting effective?

    This rule is effective November 6, 2009. The Hazardous and Solid 
Waste Amendments of 1984 amended section 3010 of RCRA to allow rules to 
become effective in less than six months when the regulated community 
does not need the six-month period to come into compliance. This rule 
reduces rather than increases the existing requirements and, therefore, 
is effective immediately upon publication under the Administrative 
Procedure Act, pursuant to 5 U.S.C. 553(d).

D. How does this action affect the states?

    Today's exclusion is being issued under the federal RCRA delisting 
program. Therefore, only states subject to federal RCRA delisting 
provisions would be affected. This exclusion is not effective in states 
that have received authorization to make their own delisting decisions. 
Also, the exclusion may not be effective in states having a dual system 
that includes federal RCRA requirements and their own requirements. EPA 
allows states to impose their own regulatory requirements that are more 
stringent than EPA's, under section 3009 of RCRA. 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, we urge petitioners to contact the state regulatory 
authority to establish the status of their wastes under the state law. 
If a participating facility transports the petitioned waste to or 
manages the waste in any state with delisting authorization, it must 
obtain a delisting from that state before it can manage the waste as 
nonhazardous in the state.

VI. 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 DRAS, which considers health and safety 
risks to 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

[[Page 57423]]

regulatory action under Executive Order 12866. This rule does not 
involve technical standards; thus, the requirements of section 12(d) of 
the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 
272 note) do not apply. As required by section 3 of Executive Order 
12988, ``Civil Justice Reform'', (61 FR 4729, February 7, 1996), in 
issuing this rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report which includes a copy of the rule to 
each House of the Congress and to the Comptroller General of the United 
States. Section 804 exempts from section 801 the following types of 
rules: (1) Rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties (5 U.S.C. 804(3)). EPA is not 
required to submit a rule report regarding today's action under section 
801 because this is a rule of particular applicability.

List of Subjects in 40 CFR Part 261

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

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

    Dated: October 5, 2009.
Margaret M. Guerriero,
Director, Land and Chemicals Division.

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 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
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Chrysler Group LLC at the Old    Sterling Heights, Michigan.....  Wastewater treatment sludges, F019, that are
 Carco LLC Sterling Heights                                        generated at Old Carco LLC's Sterling Heights
 Assembly Plant.                                                   Assembly Plant, (SHAP), Sterling Heights,
                                                                   Michigan by Chrysler Group LLC at a maximum
                                                                   annual rate of 3,000 cubic yards per year.
                                                                   The sludges must be disposed of in a lined
                                                                   landfill with leachate collection which is
                                                                   licensed, permitted, or otherwise authorized
                                                                   to accept the delisted wastewater treatment
                                                                   sludges in accordance with 40 CFR part 258.
                                                                   The exclusion becomes effective as of
                                                                   November 6, 2009.
                                                                  1. Delisting Levels: The concentrations in a
                                                                   leachate extract of the waste measured in any
                                                                   sample must not exceed the following levels
                                                                   (mg/L): arsenic--0.22; nickel--67.8; benzene--
                                                                   0.057; hexachlorobenzene--0.0000724;
                                                                   naphthalene--0.00822; and pentachlorophenol--
                                                                   0.00607.
                                                                  2. Quarterly Verification Testing: To verify
                                                                   that the waste does not exceed the specified
                                                                   delisting levels, Chrysler Group LLC or Old
                                                                   Carco LLC must collect and analyze one
                                                                   representative sample of the waste on a
                                                                   quarterly basis. Sample collection and
                                                                   analyses, including quality control
                                                                   procedures, must be performed using
                                                                   appropriate methods. SW-846 Method 1311 must
                                                                   be used for generation of the leachate
                                                                   extract used in the testing of the delisting
                                                                   levels if oil and grease comprise less than
                                                                   1% of the waste. SW-846 Method 1330A must be
                                                                   used for generation of the leaching extract
                                                                   if oil and grease comprise 1% or more of the
                                                                   waste. SW-846 Method 9071B must be used for
                                                                   determination of oil and grease. SW-846
                                                                   Methods 1311, 1330A, and 9071B are
                                                                   incorporated by reference in 40 CFR 260.11.
                                                                  3. Changes in Operating Conditions: Chrysler
                                                                   Group LLC or Old Carco LLC 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
                                                                   change significantly. Chrysler Group LLC or
                                                                   Old Carco LLC must handle wastes generated
                                                                   after the process change as hazardous until
                                                                   it has demonstrated that the wastes continue
                                                                   to meet the delisting levels and that no new
                                                                   hazardous constituents listed in Appendix
                                                                   VIII of part 261 have been introduced and it
                                                                   has received written approval from EPA.
                                                                  4. Data Submittals: Chrysler Group LLC or Old
                                                                   Carco LLC must submit the data obtained
                                                                   through verification testing or as required
                                                                   by other conditions of this rule to both U.S.
                                                                   EPA Region 5, 77 W. Jackson Blvd., Chicago,
                                                                   IL 60604 and MDEQ, Waste and Hazardous
                                                                   Materials Division, Hazardous Waste Section,
                                                                   at P.O. Box 30241, Lansing, Michigan 48909.
                                                                   The quarterly verification data and
                                                                   certification of proper disposal must be
                                                                   submitted annually upon the anniversary of
                                                                   the effective date of this exclusion.
                                                                   Chrysler Group LLC or Old Carco LLC must
                                                                   compile, summarize and maintain on site for a
                                                                   minimum of five years records of operating
                                                                   conditions and analytical data. Chrysler
                                                                   Group LLC or Old Carco LLC must make these
                                                                   records available for inspection. A signed
                                                                   copy of the certification statement in 40 CFR
                                                                   260.22(i)(12) must accompany all data.
                                                                  5. Reopener Language--(a) If, anytime after
                                                                   disposal of the delisted waste Chrysler Group
                                                                   LLC or Old Carco LLC 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 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 Chrysler
                                                                   Group LLC or Old Carco LLC must report such
                                                                   data, in writing, to the Regional
                                                                   Administrator within 10 days of first
                                                                   possessing or being made aware of that data.

[[Page 57424]]

 
                                                                  (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 inform Chrysler Group LLC or Old Carco
                                                                   LLC 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
                                                                   Chrysler Group LLC or Old Carco LLC with an
                                                                   opportunity to present information as to why
                                                                   the proposed Agency action is not necessary
                                                                   or to suggest an alternative action. Chrysler
                                                                   Group LLC or Old Carco LLC shall have 30 days
                                                                   from the date of the Regional Administrator's
                                                                   notice to present the information.
                                                                  (d) If after 30 days Chrysler Group LLC or Old
                                                                   Carco LLC 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.
                                                                  (e) Maximum Allowable Groundwater
                                                                   Concentrations ([mu]g/L): arsenic--4.87;
                                                                   nickel--750; benzene--2.5; hexachlorobenzene--
                                                                   0.00168; naphthalene--245; and
                                                                   pentachlorophenol--0.071.
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. E9-26837 Filed 11-5-09; 8:45 am]
BILLING CODE 6560-50-P