
[Federal Register: December 30, 2009 (Volume 74, Number 249)]
[Rules and Regulations]               
[Page 69028-69035]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30de09-9]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R05-RCRA-2009-0908; SW-FRL-9096-7]

 
Hazardous Waste Management System; Exclusion for Identifying and 
Listing Hazardous Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA (also, ``the Agency'' or ``we'' in this preamble) is 
taking direct final action to grant a petition submitted by 
Professional Plating, Inc. (PPI), in Brillion, Wisconsin to exclude (or 
``delist'') up to 140 cubic yards of sludge per year generated by its 
wastewater treatment plant from the list of hazardous wastes.

[[Page 69029]]

    The Agency has decided to grant the petition based on an evaluation 
of waste-specific information provided by PPI. This decision 
conditionally excludes the petitioned waste from the requirements of 
hazardous waste regulations under the Resource Conservation and 
Recovery Act (RCRA).
    We conclude that PPI's petitioned waste is nonhazardous with 
respect to the original listing criteria and that there are no other 
factors which would cause the waste to be hazardous when disposed of in 
a Subtitle D landfill which is permitted, licensed, or registered by a 
State to manage industrial solid waste.

DATES: This rule is effective on March 1, 2010 without further notice, 
unless EPA receives adverse comment by January 29, 2010. If EPA 
receives adverse comment, we will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
RCRA-2009-0908 by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     Mail: Todd Ramaly, Land and Chemicals Division, (Mail 
Code: LR-8J), EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60604.
     Hand Delivery: Todd Ramaly, Land and Chemicals Division, 
EPA Region 5, 8th Floor, 77 W. Jackson Blvd., Chicago, IL 60604. Such 
deliveries are only accepted during normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information. Please contact Todd Ramaly at (312) 353-9317.
    Instructions: Direct your comments to Docket ID No. EPA-R05-RCRA-
2009-0908. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the docket are listed in the http://
www.regulations.gov index. Although listed in the index, some 
information may not be publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available either 
electronically in www.regulations.gov or in hard copy at the EPA 
Records Center, EPA Region 5, 7th Floor, 77 W. Jackson Blvd., Chicago, 
IL 60604. The EPA Record Center is open from 8 a.m. to 4 p.m., Monday 
through Friday, excluding legal holidays. We recommend you telephone 
Todd Ramaly at (312) 353-9317 before visiting the EPA Record Center. 
The public may copy material from the regulatory docket at $0.15 per 
page.

FOR FURTHER INFORMATION CONTACT: Todd Ramaly, Land and Chemicals 
Division, Mail Code LR-8J, Environmental Protection Agency, EPA Region 
5, 77 W. Jackson Blvd., Chicago, IL 60604; telephone number: (312) 353-
9317; fax number: (312) 582-5190; e-mail address: ramaly.todd@epa.gov.

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

I. Overview Information
II. Background
    A. What Is a Listed Waste?
    B. What Is a Delisting Petition?
    C. What Factors Must EPA Consider in Deciding Whether To Grant a 
Delisting Petition?
III. EPA's Evaluation of the Waste Information and Data
    A. What Waste Did PPI Petition EPA To Delist?
    B. How Does PPI Generate the Waste?
    C. How Did PPI Sample and Analyze the Waste?
    D. What Were the Results of PPI's Analysis of the Waste?
    E. How Did EPA Evaluate the Risk of Delisting This Waste?
    F. What Did EPA Conclude About PPI's Waste?
    G. Why Is EPA Using a Direct Final Rule?
IV. Conditions for Exclusion
    A. How Will PPI Manage the Waste If It Is Delisted?
    B. What Are the Maximum Allowable Concentrations of Hazardous 
Constituents in the Waste?
    C. How Frequently Must PPI Test the Waste?
    D. What Data Must PPI Submit?
    E. What Happens If PPI Fails To Meet the Conditions of the 
Exclusion?
    F. What Must PPI Do If the Process Changes?
V. How Would This Action Affect States?
VI. Statutory and Executive Order Reviews

I. Overview Information

    The U.S. Environmental Protection Agency (EPA) is granting a 
petition submitted for the Professional Plating, Incorporated (PPI) 
facility located in Brillion, Wisconsin to exclude or delist an annual 
volume of 140 cubic yards of F019 wastewater treatment sludges from the 
lists of hazardous waste set forth in Title 40 of the Code of Federal 
Regulations (40 CFR) 261.32 and 261.33. PPI claims that the petitioned 
waste does not meet the criteria for which EPA listed it, and that 
there are no additional constituents or factors which could cause the 
waste to be hazardous.
    Based on our review described in section III, we agree with the 
petitioner that the waste is nonhazardous. We reviewed the description 
of the process which generates the waste and the analytical data 
submitted by PPI. We believe that the petitioned waste does not meet 
the criteria for which the waste was listed, and that there are no 
other factors which might cause the waste to be hazardous.

II. Background

A. What Is a Listed Waste?

    The EPA published an amended list of hazardous wastes from 
nonspecific and specific sources on January 16, 1981, as part of its 
final and interim final regulations implementing section 3001 of the 
Resource Conservation and Recovery Act (RCRA). The EPA has amended this 
list several times and published it in 40 CFR 261.31 and 261.32.
    We list these wastes as hazardous because: (1) they typically and 
frequently exhibit one or more of the characteristics of hazardous 
wastes identified in subpart C of part 261 (that is, ignitability, 
corrosivity, reactivity, and toxicity) or (2) they meet the criteria 
for listing contained in Sec. Sec.  261.11(a)(2) or (3).

[[Page 69030]]

B. What Is a Delisting Petition?

    Individual waste streams may vary depending on raw materials, 
industrial processes, and other factors. Thus, while a waste described 
in these regulations generally is hazardous, a specific waste from an 
individual facility meeting the listing description may not be.
    A procedure to exclude or delist a waste is provided in 40 CFR 
260.20 and 260.22 which allows a person, or a facility to submit a 
petition to the EPA or to an authorized State, demonstrating that a 
specific waste from a particular generating facility is not hazardous.
    In a delisting petition, the petitioner must show that a waste does 
not meet any of the criteria for listed wastes in 40 CFR 261.11 and 
that the waste does not exhibit any of the hazardous waste 
characteristics of ignitability, reactivity, corrosivity, or toxicity. 
The petitioner must present sufficient information for us to decide 
whether any factors in addition to those for which the waste was listed 
warrant retaining it as a hazardous waste. (See Sec.  260.22, 42 U.S.C. 
6921(f) and the background documents for the listed wastes.)
    If a delisting petition is granted, the generator remains obligated 
under RCRA to confirm that the waste remains nonhazardous.

C. What Factors Must EPA Consider in Deciding Whether To Grant a 
Delisting Petition?

    In reviewing this petition, we considered the original listing 
criteria and the additional factors required by the Hazardous and Solid 
Waste Amendments of 1984 (HSWA). See sec. 222 of HSWA, 42 U.S.C. 
6921(f), and 40 CFR 260.22(d)(2)-(4). We evaluated the petitioned waste 
against the listing criteria and factors cited in Sec. Sec.  
261.11(a)(2) and (3).
    Besides considering the criteria in 40 CFR 260.22(a), Sec. Sec.  
261.11(a)(2) and (3), 42 U.S.C. 6921(f), and in the background 
documents for the listed wastes, EPA must consider any factors 
(including additional constituents) other than those for which we 
listed the waste if these additional factors could cause the waste to 
be hazardous.
    Our decision to delist waste from PPI's facility is based on our 
evaluation of the waste for factors or criteria which could cause the 
waste to be hazardous. These factors included: (1) Whether the waste is 
considered acutely toxic; (2) the toxicity of the constituents; (3) the 
concentration of the constituents in the waste; (4) the tendency of the 
constituents to migrate and to bioaccumulate; (5) the persistence in 
the environment of any constituents once released from the waste; (6) 
plausible and specific types of management of the petitioned waste; (7) 
the quantity of waste produced; and (8) waste variability.
    EPA must also consider as hazardous wastes mixtures containing 
listed hazardous wastes and wastes derived from treating, storing, or 
disposing of listed hazardous waste. See 40 CFR 261.3(a)(2)(iv) and 
(c)(2)(i), called the ``mixture'' and ``derived-from'' rules, 
respectively. Mixture and derived-from wastes are also eligible for 
exclusion but remain hazardous until excluded.

III. EPA's Evaluation of the Waste Information and Data

A. What Waste Did PPI Petition EPA To Delist?

    On June 23, 2009, PPI petitioned EPA to exclude an annual volume of 
140 cubic yards of F019 wastewater treatment sludges generated at its 
facility in Brillion, Wisconsin from the list of hazardous wastes 
contained in 40 CFR 261.31. F019 is defined in Sec.  261.32 as 
``Wastewater treatment sludges from the chemical conversion coating of 
aluminum except from zirconium phosphating in aluminum can washing when 
such phosphating is an exclusive conversion coating process.'' PPI 
claims that the petitioned waste does not meet the criteria for which 
F019 was listed and that there are no other factors which would cause 
the waste to be hazardous.

B. How Does PPI Generate the Waste?

    The F019 is generated from the rinse waters and overflows of two 
zinc phosphating lines used for conversion coating aluminum parts. The 
aluminum parts are spray cleaned, immersion cleaned, and cleaned with a 
phosphoric acid prior to conversion coating. The rinse waters from 
these steps do not contribute to the petitioned waste. Rinse waters and 
overflows from the zinc phosphating step and the remaining steps in the 
treatment line are the only wastewaters contributing to the petitioned 
waste. Zinc phopshating includes several acids and nickel- and 
manganese-compounds. The parts are sealed with compounds containing 
fluorine, zirconium, and ammonium hydroxide. Lastly, epoxy-based and 
acrylic paint films are cathodically electrodeposited on the aluminum 
parts.
    The combined rinse waters and overflows from these process steps go 
to an on-site wastewater treatment plant dedicated to the F019 
wastewater. The pH of the wastewater is adjusted to 9.0 standard units 
with either sulfuric acid or sodium hydroxide. Coagulants containing 
polymers, calcium chloride, and potassium chloride are added to assist 
in precipitating wastewater contaminants. A polyacrylamide anionic 
flocculant is added to gather the coagulum into clumps large enough to 
settle at the bottom of a clarifier. The clarified water is discharged 
to the sewer and the settled sludge is pumped to a sludge thickening 
tank and then through a plate and frame filter press.
    Process vessels for both zinc phosphating lines (epoxy-coating and 
acrylic-coating) are periodically cleaned out with the resulting 
sludges also pressed by the plate and frame filter press dedicated to 
the F019 water treatment process.

C. How Did PPI Sample and Analyze the Waste?

    Six sludge samples were collected each on a monthly basis from 
April through October 2008. Sludge accumulated in a roll-off box and 
was sampled representing sludge collected over a period of 
approximately 4 weeks each. Two sludge samples representing clean-out 
of the epoxy-coating line were collected on August 25 and on October 
20, 2008 in order to characterize sludge generated from clean-out 
activities. Sludge generated from the clean-out of the acrylic-coating 
line was sampled on August 11, 2008. PPI collected one composite and 
one grab sample of sludge from each roll-off box during each sampling 
event. Composite samples consisted of four individual full-depth core 
grab samples mixed together to form one sample.
    PPI analyzed all composite samples using the following methodology: 
(1) Total constituent analysis and Toxicity Characteristic Leaching 
Procedure (TCLP) for metals in Appendix IX of 40 CFR part 264, (Test 
Methods for Evaluating Solid Waste, Physical/Chemical Methods--SW-846--
Methods 6010B and 1311 \1\); (2) total constituent and TCLP analysis 
for sulfide (SW-846 Methods 9030A and 1311); (3) total constituent and 
TCLP analysis for cyanide (SW-846 Methods 9010 and 1311 \2\); (4) total 
constituent and TCLP analysis for fluoride (SW-846 Methods 9056 and 
1311); (5) flashpoint (SW-846 Method 1010); (6) pH (SW-846 Method 
9040); and (7) oil & grease (SW-846 Method 9070).
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    \1\ Method 7471 was substituted for Method 6010 for mercury.
    \2\ Deionized water was used as the extraction fluid instead of 
the fluid specified in the method.
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    PPI screened the first two of the six monthly composite samples and 
one each of the composite samples of clean-out sludges for: (1) Total 
constituent and

[[Page 69031]]

TCLP analysis for 120 semi-volatile organic compounds (SW-846 Methods 
8270 and 1311); (2) total constituent and TCLP analysis for 
formaldehyde (SW-846 Methods 8315 and 1311); (3) total constituent and 
TCLP analysis for acrylamide (SW-846 Methods 8032 and 1311); (4) TCLP 
analysis for metals in Appendix IX of 40 CFR part 264, substituting the 
TCLP extraction fluid with deionized water in order to assess 
leachability under pH-neutral conditions (SW-846 Methods 6010B and 
1311); and (5) TCLP analysis for metals in Appendix IX of 40 CFR part 
264, substituting the TCLP extraction fluid with a buffered alkaline 
solution in order to assess leachability under alkaline conditions (SW-
846 Methods 6010B and 1311). PPI analyzed two of the six monthly full-
depth core grab samples and one each of the grab samples of clean-out 
sludges for total constituent and TCLP analysis for volatile organic 
compounds (VOCs) (SW-846 Method 8260 and SW-846 Method 1311). This 
screening analysis was performed to check for unexpected organic 
compounds in the waste as well as identify pH-dependence of metals in 
leachate in the event landfill leachates with neutral or alkaline pH 
result in higher concentrations. Detections of organic compounds were 
insignificant and the remainder of the sludge samples were not analyzed 
for these parameters.
    Metals of concern were generally preferentially leached by the 
acidic TCLP test. The exception, barium, leached more in some samples 
under alkaline conditions. However, detections of all metals, including 
barium, were so far below concentrations of concern that the remainder 
of the samples were not tested at neutral and alkaline leaching 
conditions.

D. What Were the Results of PPI's Analysis of the Waste?

    The table below presents the maximum observed total and leachate 
concentrations for all detected constituents for which maximum 
allowable total and/or TCLP concentration were available. Total 
concentrations are expressed in milligrams per kilogram (mg/kg). 
Leachate concentrations are expressed in milligrams per liter (mg/L). 
The table also includes the results of analysis for the constituents 
for which F019 was listed, chromium and cyanide. PPI submitted a signed 
a statement certifying accuracy and responsibility of the results. See 
40 CFR 260.22(i)(12).

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                                 Maximum observed concentration          Maximum allowable
                               ----------------------------------          concentration
     Constituent detected                                        --------------------------------    GW (mg/L)
                                  Total (mg/kg)     TCLP (mg/L)    Total (mg/kg)    TCLP (mg/L)
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                                           Volatile Organic Compounds
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acetone.......................        0.33             \V\ 0.113           NA          26,300           3.38
acrolein......................        0.277                 <0.5        6,850              NA           0.000504
benzene.......................        0.00142 \I\          <0.05      224,000           \1\ 0.05        0.00133
bromomethane..................        1.16                 <0.05      247,000              NA           0.0262
butanol.......................        0.510 \12\             <25           NA           2,920           3.75
carbon disulfide..............      <12              \IV\ 0.0039           NA           2,850           3.17
chloromethane.................        0.05 \I\             <0.05           NA             306           0.393
ethylbenzene..................       <1.2                 0.0034           NA             549           0.7
formaldehyde..................       86.1                  <10.0        4,150             631           0.811
methyl ethyl ketone...........        0.0365 \I\          0.0820           NA             200          22.5
methylene chloride............       <2.4                  0.028      882,000               4.0         0.005
methyl isobutyl ketone........        0.644                 <0.5           NA           2,340           3.0
trimethylbenzene, 1,2,4-......        0.000652 \I\   \I\ 0.00530           NA              34.2         0.0448
xylenes.......................       <2.4             \I\ 0.0116           NA             484           0.617
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                                         Semivolatile Organic Compounds
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benzyl alcohol................       27.7                  0.036           NA          14,600          18.8
bis(2-ethylhexyl)phthalate....        2.82                 <0.02           NA              NA           0.00321
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                                                     Metals
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barium........................      132                     0.26           NA         \1\ 100           2.0
boron.........................      114                     1.24           NA           6,570           7.5
chromium......................      153                    <1.25   \3\ 22,700           \1\ 5.0         0.1
cobalt........................      333                    <1.25       30,300              10.4         0.0113
copper........................      422                     0.49           NA           1,180           1.3
lead..........................       54.9                  <1.25           NA           \1\ 5.0         0.015
manganese.....................   15,100                     25.2           NA             815           0.9
mercury.......................        0.0182             <0.0002           98.1         \1\ 0.2         0.00145
nickel........................    7,380                     37.1           NA             638           0.75
strontium.....................   10,200                 \C\ 5.13           NA          19,700          22.5
zinc..........................   89,400                     30.2           NA          10,300          11.3
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                                            Miscellaneous Parameters
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cyanide.......................       16.3                  <0.05           NA             156         200
sulfide.......................       85.1                     NR           NA              NA          NA
fluoride......................      740                     22.6           NA           1,980       2,250
pH (corrosivity)..............              5.9-8.11
                                          2 < pH < 12.5                    NA
flashpoint (ignitability).....            > 200 [deg]F
                                          < 140 [deg]F                     NA
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These levels represent the highest concentration of each constituent found in any sample and do not necessarily
  represent the concentrations found in a single sample.

[[Page 69032]]


\1\--Based on the toxicity characteristic in 40 CFR 261 subpart C.
\2\--Includes both n-butanol and t-butanol.
\3\--Based on a mixture at a ratio of 1:6 hexavalent to trivalent chromium.
\V\--Present in blank.
NA--Maximum allowable not calculated or much higher than expected to be present.
<--Denotes that the constituent was not detected at the quantitation level.
\I\--Estimated value, below practicable quantitation limit.
\C\--Calibration check verification or quality control sample exceeded upper control limit.
NR--Analysis not run.

E. How Did EPA Evaluate the Risk of Delisting This Waste?

    For this delisting determination, we assumed that the waste would 
be disposed in a Subtitle D landfill and we considered transport of 
waste constituents through ground water, surface water and air. We 
evaluated PPI's petitioned waste using the Agency's Delisting Risk 
Assessment Software (DRAS) to predict the concentration of hazardous 
constituents that might be released from the petitioned waste and to 
determine if the waste would pose a threat. To predict the potential 
for release to groundwater from landfilled wastes and subsequent routes 
of exposure to a receptor, the DRAS uses dilution attenuation factors 
(DAFs) derived from EPA's Composite Model for leachate migration with 
Transformation Products (CMTP). From a release to groundwater, the DRAS 
considers routes of exposure to a human receptor of ingestion of 
contaminated groundwater, inhalation from groundwater while showering 
and dermal contact from groundwater while bathing.
    From a release to surface water by erosion of waste from an open 
landfill into storm water run-off, DRAS evaluates the exposure to a 
human receptor by fish ingestion and ingestion of drinking water. From 
a release of waste particles and volatile emissions to air from the 
surface of an open landfill, DRAS considers routes of exposure of 
inhalation of volatile constituents, inhalation of particles, and air 
deposition of particles on residential soil and subsequent ingestion of 
the contaminated soil by a child.
    For a detailed description of the DRAS program and revisions see 
the Delisting Technical Support Document, DRAS version 3.0 Update 
Summary, and DRAS version 3.0 User's Guide available in the docket for 
today's action.
    At a target cancer risk of 1x10-\6\ and a target hazard 
quotient of one, the DRAS program determined maximum allowable 
concentrations for each constituent in both the waste and the leachate 
at an annual waste volume of 140 cubic yards. We used the maximum 
estimated annual waste volume and the maximum reported total and 
leachate concentrations as inputs for DRAS. If, using an appropriate 
analytical method, a constituent was not detected in any sample nor in 
the leachate of any sample, it was considered not to be present in the 
waste.

F. What Did EPA Conclude About PPI's Waste?

    The maximum reported leachate concentrations and the maximum 
reported total concentrations of the hazardous constituents found in 
this waste are presented in the table above. The table also presents 
the maximum allowable concentrations. The concentrations of all 
constituents in both the waste and the leachate are below the allowable 
levels of concern calculated by the DRAS program at the target risk 
levels. We therefore conclude that PPI's wastewater treatment sludge is 
not a substantial or potential hazard to human health and the 
environment when disposed of in a Subtitle D landfill. Once the 
exclusion becomes effective, PPI must dispose of this waste in a 
Subtitle D landfill permitted or licensed by a State.

G. Why Is EPA Using a Direct Final Rule?

    EPA is publishing this rule without a prior proposed rule because 
we view this as a noncontroversial action and anticipate no adverse 
comment. The exclusion applies to a very small waste stream generated 
at a single facility and rigorous chemical analysis of the waste 
indicated that concentrations of chemicals and elements in the waste 
were far below levels of concern. If EPA receives adverse comment, we 
will publish a timely withdrawal in the Federal Register informing the 
public that the rule will not take effect. Any parties interested in 
commenting must do so at this time.

IV. Conditions for Exclusion

A. How Will PPI Manage the Waste If It Is Delisted?

    If the petitioned waste is delisted, PPI must dispose of it in a 
Subtitle D landfill which is permitted, licensed, or registered by a 
State to manage industrial waste.

B. What Are the Maximum Allowable Concentrations of Hazardous 
Constituents in the Waste?

    The following parameters were selected for ongoing verification 
because of their prevalence in the waste relative to the maximum 
allowable concentrations. Concentrations measured in the TCLP (or OWEP, 
where appropriate) extract of the waste of these constituents must not 
exceed the following concentrations (mg/l): chromium--5, cobalt--10.4; 
manganese--815; and nickel--638.

C. How Frequently Must PPI Test the Waste?

    PPI must analyze a representative sample of the wastewater 
treatment sludges on an annual basis to demonstrate that leachate 
concentrations do not exceed the levels of concern in Section IV.B. 
above. PPI must use methods with appropriate detection levels with 
appropriate quality control procedures. 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.

D. What Data Must PPI Submit?

    PPI must submit the data obtained through annual verification 
testing to U.S. EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60604, 
upon the anniversary of the effective date of this exclusion. PPI must 
compile, summarize, and maintain on site records of operating 
conditions and analytical data. PPI must make these records available 
for inspection. All data must be accompanied by a signed copy of the 
certification statement in 40 CFR 260.22(i)(12).

E. What Happens If PPI Fails To Meet the Conditions of the Exclusion?

    If PPI violates the terms and conditions established in the 
exclusion,

[[Page 69033]]

the Agency may start procedures to withdraw the exclusion.
    If any testing of the waste does not meet the maximum allowable 
concentrations described in section IV.B. above or other data 
(including but not limited to leachate data or groundwater monitoring 
data) relevant to the delisted waste indicates that any constituent is 
at a level in the leachate higher than the specified maximum allowable 
concentration, or is in groundwater at a concentration higher than the 
groundwater concentrations used in the risk evaluation, PPI must notify 
the Agency within 10 days of first possessing or being made aware of 
the data. Maximum allowable groundwater concentrations (mg/L) are as 
follows: chromium--0.1; cobalt--0.0113; manganese--0.9; and nickel--
0.75.
    The exclusion will be suspended and the waste managed as hazardous 
until PPI has received written approval from the Agency to continue the 
exclusion. PPI may provide sampling results which support the 
continuation of the delisting exclusion.
    The EPA has the authority under RCRA and the Administrative 
Procedures Act, 5 U.S.C. sec. 551 (1978) et seq. to reopen a delisting 
decision if we receive new information indicating that the conditions 
of this exclusion have been violated, or are otherwise not being met.

F. What Must PPI Do If the Process Changes?

    If PPI significantly changes the manufacturing or treatment process 
or the chemicals used in the manufacturing or treatment process, PPI 
may not handle the wastewater treatment sludge generated from the new 
process under this exclusion until it has demonstrated to the EPA that 
the waste meets the levels set in section IV.B. and that no new 
hazardous constituents listed in Appendix VIII of 40 CFR part 261 have 
been introduced. PPI must manage wastes generated after the process 
change as hazardous waste until PPI has received written notice from 
EPA that the delisting is reinstated.

V. How Would This Action Affect the States?

    Because EPA is issuing today's exclusion under the Federal RCRA 
delisting program, only States subject to Federal RCRA delisting 
provisions would be affected. This exclusion may not be effective in 
States which have received our authorization 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. These more stringent requirements may include a provision that 
prohibits a Federally issued exclusion from taking effect in the State. 
We urge petitioners to contact the State regulatory authority to 
establish the status of their wastes under the State law.
    EPA has also authorized some States to administer a 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. If PPI manages the waste in any State with delisting 
authorization, PPI must obtain delisting authorization from that State 
before it can manage the waste as nonhazardous in that 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 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

    Hazardous waste, Recycling, and Reporting and recordkeeping 
requirements.

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


[[Page 69034]]


    Dated: November 9, 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. Table 1 of Appendix IX to Part 261 is amended by adding the 
following waste stream 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
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Professional Plating, Incorporated  Brillion, Wisconsin...............  Wastewater treatment sludges, F019,
                                                                         which are generated at the Professional
                                                                         Plating, Incorporated (PPI) Brillion
                                                                         facility at a maximum annual rate of
                                                                         140 cubic yards per year. The sludge
                                                                         must be disposed of in a Subtitle D
                                                                         landfill which is licensed, permitted,
                                                                         or otherwise authorized by a State to
                                                                         accept the delisted wastewater
                                                                         treatment sludge. The exclusion becomes
                                                                         effective as of March 1, 2010.
                                                                        1. Delisting Levels: The constituent
                                                                         concentrations measured in a leachate
                                                                         extract may not exceed the following
                                                                         levels (mg/L): chromium--5, cobalt--
                                                                         10.4; manganese--815; and nickel--638.
                                                                        2. Annual Verification Testing: To
                                                                         verify that the waste does not exceed
                                                                         the specified delisting levels, PPI
                                                                         must collect and analyze, annually, one
                                                                         waste sample for the constituents in
                                                                         Section 1. using methods with
                                                                         appropriate detection levels and
                                                                         elements of quality control. 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: PPI
                                                                         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
                                                                         significantly change. PPI must handle
                                                                         wastes generated after the process
                                                                         change as hazardous until it has
                                                                         demonstrated that the wastes continue
                                                                         to meet the maximum allowable
                                                                         concentrations in Section 1. 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. Reopener Language--(a) If, anytime
                                                                         after disposal of the delisted waste,
                                                                         PPI 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 concentration in
                                                                         the waste or waste leachate higher than
                                                                         the maximum allowable concentrations in
                                                                         Section 1. above or is in the
                                                                         groundwater at a concentration higher
                                                                         than the maximum allowable groundwater
                                                                         concentrations in Paragraph (e), then
                                                                         PPI must report such data, in writing,
                                                                         to the Regional Administrator within 10
                                                                         days of first possessing or being made
                                                                         aware of that data.
                                                                        (b) Based on the information described
                                                                         in paragraph (a) and any other
                                                                         information received from any source,
                                                                         the Regional Administrator will make a
                                                                         preliminary determination as to whether
                                                                         the reported information requires
                                                                         Agency action to protect human health
                                                                         or the environment. Further action may
                                                                         include suspending, or revoking the
                                                                         exclusion, or other appropriate
                                                                         response necessary to protect human
                                                                         health and the environment.
                                                                        (c) If the Regional Administrator
                                                                         determines that the reported
                                                                         information does require Agency action,
                                                                         the Regional Administrator will notify
                                                                         the facility 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 PPI
                                                                         with an opportunity to present
                                                                         information as to why the proposed
                                                                         Agency action is not necessary or to
                                                                         suggest an alternative action. PPI
                                                                         shall have 30 days from the date of the
                                                                         Regional Administrator's notice to
                                                                         present the information.
                                                                        (d) If after 30 days PPI 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 (mg/L) are as follows:
                                                                         chromium--0.1; cobalt--0.0113;
                                                                         manganese--0.9; and nickel--0.75.

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


[[Page 69035]]

[FR Doc. E9-30994 Filed 12-29-09; 8:45 am]

BILLING CODE 6560-50-P
