Hazardous Waste Management System: Identification and Listing of Hazardous Waste; Amendment to Hazardous Waste Code F019, 31756-31769 [E8-12483]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 73, Number 108 (Wednesday, June 4, 2008)]
[Rules and Regulations]
[Pages 31756-31769]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-12483]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 261 and 302

[EPA-HQ-RCRA-2006-0984, FRL-8575-4]
RIN 2050-AG15


Hazardous Waste Management System: Identification and Listing of 
Hazardous Waste; Amendment to Hazardous Waste Code F019

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is amending the list 
of hazardous wastes from non-specific sources (called F-wastes) by 
modifying the scope of the EPA Hazardous Waste No. F019 (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). The Agency is 
amending the F019 listing to exempt wastewater treatment sludges from 
zinc phosphating, when such phosphating is used in the motor vehicle 
manufacturing process, provided that the wastes are not placed outside 
on the land prior to shipment to a landfill for disposal, and the 
wastes are placed in landfill units that are subject to or meet the 
specified landfill design criteria. This final action on the F019 
listing does not affect any other wastewater treatment sludges either 
from the chemical conversion coating of aluminum, or from other 
industrial sources. Additionally, this rule amends the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA) list 
of Hazardous Substances and Reportable Quantities so that the F019 
listing description is consistent with the amendment to F019 under 
regulations for hazardous wastes from non-specific sources.

DATES: This final rule is effective on July 7, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-RCRA-2006-0984. All documents in the docket are listed in 
the https://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, i.e., 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 https://www.regulations.gov or in hard copy at the 
OSWER Docket in the EPA Docket Center (EPA/DC), EPA West, Room 3334, 
1301 Constitution Avenue, NW., Washington, DC 20460. The EPA/DC Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Reading 
Room is (202) 566-1744 and the telephone number for the RCRA Docket is 
(202) 566-0270.

FOR FURTHER INFORMATION CONTACT: For general information, review our 
Web site at https://www.epa.gov/epaoswer/hazwaste. For information on 
specific aspects of the rule, contact James Michael of the Office of 
Solid Waste (5304P), U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460, (E-mail address and 
telephone number: michael.james@epa.gov, (703) 308-8610).

SUPPLEMENTARY INFORMATION:

General Information

Who Is Potentially Affected by This Final Rule?

    This final rule could directly affect businesses that generate 
certain wastes from the manufacturing of motor vehicles in the (1) 
automobile manufacturing industry and (2) light truck/utility vehicle 
manufacturing industry (NAICS codes 336111 and 336112, respectively). 
Other motor vehicle manufacturing industries (e.g., heavy duty truck or 
motor home manufacturing) are not affected by this rule. The wastes 
affected by this final rule are wastewater treatment sludges generated 
from the chemical conversion coating of aluminum using a zinc 
phosphating process and are currently listed as EPA Hazardous Waste No. 
F019 (see 40 CFR 261.31). These wastes will not be subject to the F019 
listing, provided the wastes are not placed outside on the land prior 
to the shipment to a landfill for disposal and are either: disposed in 
a Subtitle D municipal or industrial landfill unit that is equipped 
with a single clay liner and is permitted, licensed or otherwise 
authorized by the state; or disposed in a landfill unit subject to, or 
otherwise meeting, the landfill requirements in Sec.  258.40, Sec.  
264.301, or Sec.  265.301. Impacts on potentially affected entities are 
summarized in Section VI of this Preamble. The ``Regulatory Impact 
Analysis'' (RIA) for this action presents an analysis of potentially 
affected entities and is available in the docket

[[Page 31757]]

established in support of this final rule. Entities potentially 
affected by this action are at least 7 current F019 generators within 
these two industries, consisting of four auto and three light truck/
utility vehicle plants, and up to 42 other facilities in these two 
industries that may begin applying aluminum parts and could potentially 
generate regulated F019 waste without this final rule (based on 2005 
Biennial Report data).\1\ This action might also affect the 19 auto and 
light truck plants with prior F019 de-listings issued between 1997 and 
2007, because this action could supplant their delisting status and 
conditions, depending upon the extent of state government voluntary 
adoption of this final rule.
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    \1\ EPA, in partnership with the States, biennially collects 
information regarding the generation, management, and final 
disposition of hazardous wastes regulated under RCRA. See the 2005 
Biennial Report on the EPA Web site at https://www.epa.gov/epaoswer/
hazwaste/data/br05/index.htm.
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    To determine whether your facility is affected by this action, you 
should examine 40 CFR Parts 260 and 261 carefully, along with the final 
regulatory language amending Chapter I of the Code of Federal 
Regulations (CFR). This language is found at the end of this Federal 
Register notice. If you have questions regarding the applicability of 
this action to a particular entity, consult the person listed in the 
preceding section entitled FOR FURTHER INFORMATION CONTACT.

Preamble Outline

I. Legal Authority
II. List of Acronyms
III. Summary of This Action
IV. Summary of the Proposed Action
    A. Summary of Risk Assessment Approach Used
    B. Proposed Landfill Liner Design Options
    C. Proposed Options for Recordkeeping and Storage
V. Rationale for This Final Rule and Response to Comments
    A. Landfill Liner Conditions
    B. The Need for Storage Requirements
    C. Recordkeeping Requirements
    D. Scope and Applicability of the Exemption
    E. Applicability to Recycled Waste
    F. Interrelationship Between the Exemption and Delistings
    G. Waste Analysis
    H. Other Issues
VI. State Authorization
VII. Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA) Designation and List of Hazardous Substances 
and Reportable Quantities
VIII. Relationship to Other Rules--Clean Water Act
IX. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. Legal Authority

    The hazardous waste regulations are promulgated under the authority 
of Sections 2002 and 3001(b) and (f), 3004(d)-(m) and 3007(a) of the 
Solid Waste Disposal Act, as amended by the Resource Conservation and 
Recovery Act (RCRA), as amended, most importantly by the Hazardous and 
Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. 6912, 6921(b), 
6924(d)-(m) and 6927(a). These statutes combined are commonly referred 
to as the ``Resource Conservation and Recovery Act'' (RCRA) and will be 
referred to as such for the remainder of this Notice.
    Because EPA is amending the national listing of F019, EPA believes 
the appropriate statutory authority is that found in section 3001(b), 
rather that the authority in section 3001(f). RCRA section 3001(f) 
pertains solely to the exclusion of a waste generated at a particular 
facility in response to a petition. Accordingly, neither the procedures 
nor the standards established in that provision, or in EPA's 
regulations at 40 CFR 260.22 are applicable to this rulemaking.
    Section 102(a) of the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9602(a) is 
the authority under which the CERCLA aspects of this rule are 
promulgated.

II. List of Acronyms

                                Acronyms
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               Acronym                             Definition
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CBI..................................  Confidential Business
                                        Information.
CERCLA...............................  Comprehensive Environmental
                                        Response, Compensation, and
                                        Liability Act.
CFR..................................  Code of Federal Regulations.
DRAS.................................  Delisting Risk Assessment
                                        Software.
EPA..................................  Environmental Protection Agency.
ICR..................................  Information Collection Request.
IWEM.................................  Industrial Waste Management
                                        Evaluation Model.
MSWLF................................  Municipal Solid Waste Landfill.
NAICS................................  North American Industrial
                                        Classification System.
NTTAA................................  National Technology and Transfer
                                        Act.
OMB..................................  Office of Management and Budget.
OSWER................................  Office of Solid Waste and
                                        Emergency Response.
PRA..................................  Paperwork Reduction Act.
RCRA.................................  Resource Conservation and
                                        Recovery Act.
RFA..................................  Regulatory Flexibility Act.
RQ...................................  Reportable Quantity.
UMRA.................................  Unfunded Mandates Reform Act.
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[[Page 31758]]

III. Summary of This Action

    In this notice, EPA is promulgating regulations that amend the list 
of hazardous wastes from non-specific sources under 40 CFR 261.31 by 
modifying the scope of EPA Hazardous Waste No. F019. The revised 
listing will now read:

    F019--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. Wastewater treatment sludges from the manufacturing of 
motor vehicles using a zinc phosphating process will not be subject 
to this listing at the point of generation if the wastes are not 
placed outside on the land prior to shipment to a landfill for 
disposal and are either: disposed in a Subtitle D municipal or 
industrial landfill unit that is equipped with a single clay liner 
and is permitted, licensed or otherwise authorized by the state; or 
disposed in a landfill unit subject to, or otherwise meeting, the 
landfill requirements in Sec.  258.40, Sec.  264.301 or Sec.  
265.301. For the purposes of this listing, motor vehicle 
manufacturing is defined in Sec.  261.31(b)(4)(i) of this section 
and paragraph Sec.  261.31(b)(4)(ii) of this section describes the 
recordkeeping requirements for motor vehicle manufacturing 
facilities.

    The Agency is amending the F019 listing to exempt the wastewater 
treatment sludge generated from zinc phosphating, when zinc phosphating 
is used in the automobile assembly process, provided the waste are not 
placed outside on the land prior to shipment to a landfill for disposal 
and the waste is disposed in a landfill unit subject, or otherwise 
meeting, certain liner requirements. Wastes that meet these conditions 
will be exempted from the listing from their point of generation, and 
will not be subject to any RCRA Subtitle C management requirements for 
generation, storage, transport, treatment, or disposal (including the 
land disposal restrictions). The Agency is also requiring that the 
generator maintain records on site to show that the waste meets the 
conditions of the listing.
    For the purposes of the F019 listing, motor vehicle manufacturing 
is defined to include the manufacture of automobiles and light trucks/
utility vehicles (including light duty vans, pick-up trucks, minivans, 
and sport utility vehicles). The motor vehicle manufacturing industry 
incorporates aluminum into vehicle parts and bodies for the purpose of 
making them lighter-weight and thus more capable of increasing gas 
mileage. However, when aluminum is incorporated into the body of an 
automobile, the conversion coating step in the manufacturing process 
resulted in the generation of an RCRA-listed hazardous waste (F019) in 
the form of a wastewater treatment sludge from the conversion coating 
process. Wastewaters from the conversion coating of steel in the same 
industry do not generate a listed hazardous waste. By removing the 
regulatory controls under RCRA, EPA is facilitating the use of aluminum 
in motor vehicles. The Agency believes that the incorporation of 
aluminum will be advantageous to the environment since lighter-weight 
vehicles are capable of achieving increased fuel economy and associated 
decreased exhaust air emissions. These modifications to the F019 
listing will not affect any other wastewater treatment sludges either 
from the chemical conversion coating of aluminum, or from other 
industrial sources.
    The Agency is also promulgating conforming changes to the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA) list of Hazardous Substances and Reportable Quantities under 
40 CFR 302.4 so that the F019 listing description is consistent with 
the changes to the F019 listing.

IV. Summary of the Proposed Action

    On January 18, 2007 (72 FR 2219), the Agency proposed to amend the 
list of hazardous wastes from non-specific sources (called F-wastes) 
under 40 CFR 261.31 by modifying the scope of the EPA Hazardous Waste 
No. F019 (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). Specifically, the Agency proposed to amend the F019 listing 
to exempt 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 
liner design criteria. A summary of the proposed listing amendment is 
presented below. More detailed discussions are provided in the preamble 
to the proposed rule and in the background documents included in the 
docket for this rule.

A. Summary of Risk Assessment Approach Used

    The Agency's risk assessment evaluated risks to human health and 
the environment from a landfill disposal scenario. (See the ``Technical 
Support Document: Assessment of Potential Risks from Managing F019 
Waste from the Motor Vehicle Manufacturing Industry'' in the docket for 
this rulemaking for a detailed description of the analysis that the 
Agency performed, hereinafter referred to as the Technical Support 
Document.) EPA initially evaluated the potential risks posed by the 
volumes of F019 waste from the automobile manufacturers that might be 
disposed of in an unlined nonhazardous waste landfill, and then 
evaluated potential risks from disposal in landfills that use different 
liner technologies. The risk evaluation used several environmental 
fate, transport, and exposure/risk models: the Delisting Risk 
Assessment Software (DRAS), version 2.0, the Industrial Waste 
Management Evaluation Model (IWEM),\2\ and EPA's Composite Model for 
Leachate Migration with Transformation Products (EPACMTP). See the 
Technical Support Document for a detailed description of the use of 
these models and their peer review.
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    \2\ IWEM is the groundwater modeling component of the Guide for 
Industrial Waste Management, used for recommending appropriate liner 
system designs for the management of RCRA Subtitle D industrial 
waste.
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    EPA's Regional Offices, and certain states, use the DRAS model to 
determine whether to grant requests for delistings under 40 CFR 260.22. 
The RCRA regulations provide a form of relief for listed wastes through 
a site-specific process known as ``delisting.'' Under this process, any 
person may petition EPA to remove its waste from regulation under the 
lists of hazardous wastes contained in Part 261. EPA has granted 
delistings to a number of motor vehicle manufacturing facilities that 
generate F019 wastes.
    EPA used the DRAS model to calculate the levels of constituents in 
a waste that would not exceed the 10-5 risk level for 
carcinogens (i.e., less than or equal to an increased probability of 
developing cancer that is one in one hundred thousand).\3\ For non-
carcinogens, EPA used a ``hazard quotient'' (HQ) less than or equal to 
1.0; the hazard quotient is the ratio of an individual's chronic daily 
exposure to a standard, such as the chronic reference dose.\4\ Using 
the DRAS model, EPA evaluated risks from potential exposures

[[Page 31759]]

to waste constituents resulting from releases to groundwater, air (both 
waste particles and volatile emissions), and surface water. See the 
Technical Support Document for a complete description of the scenario 
that was modeled using DRAS, the human health and ecological exposure 
pathways, and the data sources the Agency used as model inputs. For the 
purposes of this national rulemaking, EPA chose to adopt a conservative 
modeling approach in order to assure continued protection of human 
health and the environment. While this process was used to determine if 
these wastes would pose a risk if disposed of in unlined landfills, the 
Agency notes that facilities can petition for a separate site-specific 
delisting of their F019 wastestreams based on their chemical 
composition.
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    \3\ These risk levels are consistent with those discussed in 
EPA's hazardous waste listing determination policy (see the 
discussion in a proposed listing for wastes from the dye and pigment 
industries, December 22, 1994; 59 FR 66072).
    \4\ The reference dose is ``an estimate (with uncertainty 
spanning perhaps an order of magnitude) of a daily oral exposure for 
a chronic duration (up to a lifetime) to the human population 
(including sensitive subpopulations) that is likely to be without an 
appreciable risk of deleterious effects during a lifetime.'' See 
EPA's Integrated Risk Information System (IRIS).
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    To identify waste constituents, EPA reviewed information from 13 
motor vehicle manufacturing facilities' delisting petitions. This 
included information on the specific chemicals used in the conversion 
coating process, and the analytical data received from the 13 
facilities' delisting petitions. The Agency evaluated the chemicals 
that were detected in the F019 sludge from the analyses conducted by 
the petitioners for approximately 240 chemical constituents. EPA's 
evaluation assumed that the waste volume equaled the volume resulting 
from 20 to 30 years of disposal into a landfill (90,000 cubic yards).
    Based on the assessment of the groundwater pathway using DRAS, the 
Agency determined that two constituents (arsenic and nickel) had 
maximum detected values that, in certain scenarios, exceeded the 
10-5 risk level or an HQ of 1. The DRAS modeling for unlined 
landfills yielded an estimated HQ of 3 for nickel, and an estimated 
individual excess lifetime cancer risk for arsenic of three in one 
hundred thousand. Thus, using conservative modeling and exposure 
assumptions, the Agency found that the projected levels for these two 
constituents could exceed these risk levels by up to a factor of three.
    The potential risks found by the DRAS modeling were from the 
groundwater exposure pathway, therefore, units with liner systems 
should dramatically lessen releases to groundwater. DRAS does not have 
an option to model the impact of liners on landfill releases. To 
examine the potential impact of liners, the Agency compared the levels 
calculated by the Industrial Waste Management Evaluation Model (IWEM), 
for clay-lined and composite-lined landfills. \5\ The initial IWEM 
evaluation clearly showed that the use of a composite-lined landfill 
would result in risk levels for the two key constituents of concern, 
below 10-5 for arsenic and an HQ of less than 1 for nickel. 
EPA also referred to the modeling performed for lined landfills in the 
recent listing rule for dye and pigment production wastes to show that 
composite-lined landfills provided significant protection compared to 
an unlined unit (February 24, 2005, 70 FR 9138).
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    \5\ A composite liner as defined in Sec.  258.40 consists of a 
combination of a synthetic liner and an underlying compacted soil/
clay liner.
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    The IWEM results for a clay-lined unit also indicated that a single 
clay liner offers added protection compared to an unlined unit. For 
nickel, the risk level achieved by a single clay liner was 
approximately 3-fold less than the risk level for an unlined unit. For 
arsenic, the risk level achieved by a single clay liner was 
approximately 7-fold less than the level for an unlined unit. Given 
that the DRAS results for these two constituents exceeded these levels 
by only a factor of 3, EPA concluded that disposal in a landfill with a 
single clay liner would also be sufficiently protective.

B. Proposed Landfill Liner Design Options

    Based on the modeling results, EPA proposed two landfill design 
options under which F019 sludge from motor vehicle manufacturers would 
not be hazardous. Under option one, EPA proposed that the landfill unit 
must meet the liner requirements for municipal solid waste landfills 
(MSWLFs) in 40 CFR 258.40 or other liner designs containing a composite 
liner.\6\ Under option two, the Agency proposed to also allow disposal 
in state-permitted municipal and industrial solid waste landfills, 
provided the landfill unit includes at least a single clay liner (this 
option would also allow disposal in the types of landfill units allowed 
under option one, i.e., units equipped with composite liners). The 
Agency sought comment on whether option two would provide any 
significant regulatory relief over option one. MSWLFs are required to 
have composite liners (or performance based equivalents), except for 
``existing'' units (i.e., generally units that existed prior to 1993). 
Thus, EPA believes that most MSWLF units are likely to have composite 
liners (or equivalents). The Agency solicited comment on whether option 
two would be straightforward to implement or whether it will raise 
implementation or compliance issues for the waste generator, such as 
the availability of state standards for liners in older landfills, and 
on any issues that might be raised for recordkeeping and documentation.
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    \6\ Disposal in hazardous waste landfills would also be allowed, 
because the regulations in Sec. Sec.  264.301 and 265.301 include 
composite liners. Federal regulations for municipal solid waste 
landfills require that new units (and lateral expansions of existing 
units) meet design criteria for composite liners and leachate 
collection systems (or other approved performance standards).
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C. Proposed Options on Recordkeeping and Storage

    In the proposal, EPA noted that disposal in a landfill subject to 
or meeting the landfill design requirements was a condition of the 
exemption, so that if a generator does not fulfill this condition, the 
sludges would be F019 listed wastes and subject to the applicable 
Subtitle C requirements. The Agency encouraged generators to properly 
store the wastes that are claimed to be nonhazardous wastes to ensure 
that improper releases do not occur. Generators wishing to qualify for 
the exemption from the F019 listing would be required to maintain 
records to show that their wastes are placed in a landfill unit that 
meets the specified liner requirements. The Agency proposed a flexible 
performance standard that would allow the generator to demonstrate that 
shipments of waste were received by an appropriate landfill unit 
through various means. The proposal stated that a generator could use 
contracts with landfills and shipping documents to demonstrate that the 
landfill owner/operator used units that met the liner design 
requirements: The generator could also use bills of lading, manifests, 
or invoices documenting delivery. The proposed regulatory text (Sec.  
261.31(b)(4)(iii)) specified the necessary records.
    The Agency requested comment on whether the proposed recordkeeping 
requirements should be made conditions of the exemption, rather than 
established as separate recordkeeping requirements. In addition, the 
Agency sought comment on whether additional requirements or conditions 
would be necessary to ensure that the waste is not improperly disposed 
or released prior to disposal. The Agency also asked for comment on 
possible regulatory language that might be used to specify that the 
waste be stored so as to minimize releases to the environment. The 
Agency sought any information as to the current and likely sludge 
management practices at motor vehicle manufacturers. The Agency noted 
that, if such information indicated generators are already handling the 
waste to

[[Page 31760]]

minimize releases, the Agency would consider this when deciding whether 
storage conditions are necessary.

V. Rationale for This Final Rule and Response to Comments

    While all of the commenters generally supported the exemption, they 
differed over the types of management and landfill conditions that are 
necessary for the exempt waste. Some commenters also suggested that the 
Agency expand the scope of the exemption in various ways. After 
reviewing the comments, the Agency has decided to promulgate the final 
rule with limited revisions to the proposed regulation. This section 
will describe the revisions to the rule, which encompass the Agency's 
decision on a number of options presented in the proposal. This section 
also provides responses to the key comments received on the proposal. 
More details of the Agency's responses are contained in the document 
entitled ``Response to Comments Document: Amendment to Hazardous Waste 
Listing Code F019 (Final Rule)'', which is in the docket for this 
rulemaking.

A. Landfill Liner Conditions

    The proposed exemption was conditioned on the disposal of the waste 
in a landfill meeting certain liner design requirements. The proposal 
presented two options for the landfill liner design. Under option one, 
the landfill unit would have a liner system that meets, or is subject 
to, the design requirements for an MSWLF (Sec.  258.40) or a Subtitle C 
waste landfill (Sec. Sec.  264.301 and 265.301). Option two would also 
allow the generator the option of disposing the waste in a state 
permitted/authorized Subtitle D landfill (municipal or industrial) that 
is equipped with a single clay liner. The Agency sought comment on 
whether the second option would provide significant additional 
regulatory relief, and whether it would provide any special compliance 
or implementation issues.
    Most commenters stated that the exemption should allow disposal of 
the exempt waste in any clay-lined landfill, and not be restricted to 
disposal in landfills that would typically have composite liners. Some 
commenters specifically supported the second option, arguing that this 
would provide more flexibility for possible disposal sites, which might 
be important for generators in remote locations. Commenters noted that 
this would not raise any special implementation, compliance, or 
recordkeeping problems, because generators would rely on state 
permitting authorities to identify adequate landfills. Other commenters 
stated that the regulatory language of the exemption should not 
conflict with, but rather acknowledge, existing state regulations, 
e.g., it should allow disposal in a landfill unit ``meeting state 
regulatory liner requirements.'' Another commenter stated that disposal 
should be limited to ``permitted Subtitle C or D landfills.''
    The Agency has decided to adopt the second landfill liner option in 
the final rule. That is, the regulations will specify that the waste is 
exempt, provided the wastes are either disposed in a permitted Subtitle 
D (municipal or industrial) landfill unit that is equipped with at 
least a single clay liner, or in a unit that is subject to, or 
otherwise meets, the liner requirements for MSWLFs (Sec.  258.40) or 
hazardous waste landfills (Sec.  264.301 or Sec.  265.301). The 
modeling performed for the proposed rule demonstrated that disposal of 
the waste in a landfill equipped with either a composite liner or a 
clay liner would be protective. The Agency believes that a clay liner 
is sufficiently protective and provides added regulatory flexibility 
for generators. As described in the proposed rule, the protective 
factor provided by a clay-lined unit compared to an unlined unit was 
sufficient to reduce risks from an unlined unit to below 
10-5 risk level or an HQ of 1.
    The Agency also notes that the modeling performed for clay-lined 
landfills in the recent listing for dye and pigment production wastes 
(February 24, 2005, 70 FR 9138) showed that the clay-lined units 
provided a similar level of risk reduction for metals released from a 
landfill (i.e., the clay-lined unit reduced risks for metals by a 
factor of 3.2 to 3.8 compared to an unlined unit).\7\ These results 
provide further support that the margin of protection offered by a 
single clay liner is sufficient.
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    \7\ The modeling results for clay-lined units, while not 
specifically cited in the proposal, were included in the risk 
document for the Dyes and Pigments waste listing that was placed 
into the docket to support the conclusion that liners reduce risks 
for the exempt waste to below 10-5 for carcinogens or an 
HQ of less than or equal to 1 for non-carcinogens.
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    The final rule will require the generator to document that the 
wastewater treatment sludge went to a permitted landfill that was 
equipped with at least a single clay liner. As discussed in the 
proposed rule, the generators may obtain information on the landfill 
units in question from the state permitting authorities (or the 
receiving landfill, if the facility has adequate documents, such as a 
permit to operate). It is the responsibility of the generator to 
document the adequacy of the receiving landfill's design and to keep 
records that demonstrate that the landfill condition for disposal was 
met.

B. The Need for Storage Requirements

    In the proposed rule, the Agency requested comment on the option of 
adding storage conditions to the exemption. The Agency also sought 
further information on the sludge management practices of the motor 
vehicle manufacturers generating F019 waste. The proposal presented 
some possible regulatory language that would require proper storage of 
sludges before disposal. Most commenters stated that storage conditions 
were unnecessary for the exempt sludge prior to shipment off site for 
disposal. Commenters stated that it was ``standard industry-wide 
practice'' for dewatering equipment and containers to be inside 
buildings, and for containers to be routinely covered when moved 
outside for shipment off site to prevent precipitation from entering 
the containers. These commenters also stated that requirements to 
constantly cover and uncover containers could cause, rather than 
prevent, spills. Two commenters, however, supported the concept of some 
storage conditions. One simply stated they concurred with the proposed 
regulatory language for storage. The other commenter suggested that the 
exempt waste should be regulated as hazardous until disposed in a 
landfill to ensure safe handling.
    The Agency does not believe there is a need for detailed storage 
conditions or regulation of the waste as hazardous prior to disposal. 
The Agency has decided that detailed storage requirements or conditions 
are not necessary, given the known management practices for the waste. 
As noted in the proposed rule, during visits to vehicle manufacturing 
sites, the Agency found that dewatering equipment and containers were 
kept inside buildings, reducing any potential for releases. This is 
consistent with the comments provided by automobile manufacturers on 
the proposed rule. The Agency also expects, as commenters stated, that 
containers are kept covered when moved outside for transport off site 
to prevent the entrance of precipitation. The Agency has no information 
to suggest that such sludges have been stored improperly or that 
releases have occurred from on-site management of either F019 waste, or 
the formerly F019 wastes that were delisted. None of the 19 delistings 
that have been granted for this waste have imposed any special storage 
requirements for the delisted waste. Furthermore, as comments submitted 
by state authorities

[[Page 31761]]

noted, the exempt waste remains subject to regulation as an industrial 
solid waste.
    Based on the analysis described in section IV.A of this notice, the 
Agency believes that the waste in question carries risk below the 
10-5 risk level or an HQ of 1 when properly disposed. The 
Agency evaluated potential releases of the sludge to air, surface 
water, and groundwater that may arise from the disposal of the waste in 
a landfill for 20 to 30 years, and found no significant risk, provided 
disposal occurs in units equipped with certain liner designs. This 
waste does not present any apparent acute risk (e.g., fire/explosion 
hazard, or highly toxic chemicals), and the relatively high water 
content of the sludge would also reduce the likelihood of any air 
dispersal of the sludge on site.
    However, the Agency recognizes that commenters have some concerns 
over management practices for the waste prior to disposal. In lieu of 
detailed storage conditions, the Agency has decided to include 
regulatory language specifying that the waste must not be placed 
outside on the land prior to disposal. Given that the exemption is 
conditioned upon the ultimate disposal in an appropriate landfill, EPA 
believes that a requirement that the generator not place the waste on 
the land prior to disposal is implicit in that condition, and therefore 
the inclusion of this specific direction is reasonable. Such a 
prohibition addresses any potential risks from management of the waste 
on the land prior to shipment offsite. In the proposal, the storage 
conditions the Agency offered as an option included more specific 
requirements for how the waste must be stored prior to disposal. 
However, as noted above, generators appear to be managing the waste 
appropriately at this time, so a simpler direction prohibiting on land 
placement prior to disposal is sufficient.
    The Agency believes that placement outside on the land in an 
uncontrolled manner creates a potential for release of toxic 
constituents from the waste. Also, the Agency's risk analysis indicated 
that the F019 waste at issue may present risks above the 
10-5 risk level (or an HQ of one) if disposed in an unlined 
land-based unit. The prohibition on land placement prior to disposal 
ensures that the waste is properly handled to avoid placement in an 
uncontrolled land area (which is analogous to an unlined landfill). 
Therefore, the Agency is adding language to the conditions of the 
exemption in Sec.  261.31(a) that specifies that the generator cannot 
place the waste outside on the land prior to shipment for disposal at a 
landfill. The Agency is also deleting the language in Sec.  
261.31(b)(ii) from the proposed regulation, because the language is not 
needed; the conditions for the exemption are fully specified in the 
listing description in Sec.  261.31(a). EPA has made minor changes to 
the regulation to make the exemption language consistent with the 
removal of the proposed language in Sec.  261.31(b)(ii) and the 
renumbering of the recordkeeping requirements, originally proposed as 
Sec.  261.31(b)(iii), as Sec.  261.31(b)(ii) in the final rule.
    Generators that do not meet the conditions (i.e., no outside 
placement on the land and disposal of the waste in a landfill unit that 
meets certain liner design criteria) would be subject to enforcement 
action. In such cases, the wastewater treatment sludges may be 
considered to be F019 listed hazardous waste from the point of their 
generation, and EPA could choose to bring an enforcement action under 
RCRA section 3008(a) for violations of hazardous waste regulatory 
requirements occurring from the time the wastewater treatment sludges 
are generated. Furthermore, if any releases of the waste occurred that 
threaten human health or the environment, the releases could 
potentially be addressed through enforcement orders, such as orders 
under RCRA sections 3013 and 7003. States could choose to take an 
enforcement action for violations of state hazardous waste requirements 
under state authorities.
    Based on the information available, the Agency believes that the 
condition of no land placement allows the motor vehicle manufacturers 
to dispose of this waste as nonhazardous, while continuing their 
current waste management practices. Storage in roll-off boxes and 
similar containers, as well as storage inside buildings, would clearly 
fulfill the condition of no outside land placement. Therefore, the 
Agency believes that the condition will not impose any additional 
burden on the generators.

C. Recordkeeping Requirements

    As noted in the proposal, generators claiming the exemption must be 
able to demonstrate that the conditions of the exemption are being met 
and bear the burden of proof to demonstrate compliance (analogous to 
other exemptions, see 40 CFR 261.2(f)). Therefore, it is important that 
generators retain sufficient records to document the disposal site for 
the exempt waste. The proposed rule included regulatory text (Sec.  
261.31(b)(4)(iii)) that specified the records necessary for a generator 
claiming the exemption. EPA requested comment on whether the proposed 
recordkeeping requirements should also be made conditions of the 
exemption, rather than established as a separate regulatory provision. 
If the recordkeeping provisions were made conditions of the exemption, 
then failure to comply may result in enforcement actions for violating 
RCRA standards for storing hazardous waste.
    Most commenters stated that the recordkeeping requirement should be 
a separate regulatory requirement, and not a condition of the exemption 
itself. They noted that the full Subtitle C requirements should only 
apply when the waste is not sent to an appropriate landfill, and not 
when the generator may have failed to comply with ancillary 
recordkeeping requirements. One of these commenters assumed that, in 
addition to the need to document the waste volume generated and 
disposed off site, the information would also include the identity of 
the landfill where the sludge was disposed. Another commenter 
encouraged the Agency to make the recordkeeping requirements a 
condition of the exemption to reinforce the concept that the exemption 
is conditioned on proper management.
    The Agency believes that a recordkeeping requirement, rather than a 
condition, will be sufficient motivation to ensure that the waste is 
properly disposed. The Agency believes that full Subtitle C 
requirements should not apply if the generator complied with the 
disposal conditions, i.e., the waste was sent to an appropriate 
landfill, but the generator simply lacked adequate records. This avoids 
cases where the lack of recordkeeping leads to the waste being 
hazardous, regardless of the actual disposal site. Failure to comply 
with recordkeeping requirements could result in enforcement action by 
EPA under section 3008 of RCRA (or by an authorized state under similar 
state authorities), which authorizes the imposition of substantial 
civil penalties. Also, as noted by one commenter, the generator should 
be able to demonstrate that their waste was properly disposed of just 
as they would for any other solid waste.
    However, the Agency recognizes the need for adequate records for 
enforcement authorities to confirm that the exempt waste was properly 
disposed. The proposed recordkeeping requirements in Sec.  
261.31(b)(4)(iii) would require generators to maintain documentation 
sufficient to prove that the waste meets the disposal condition, 
including the volume of waste generated and disposed off site. The 
Agency agrees with the one commenter's assumption that this information 
would include the identity of the landfill(s) where the

[[Page 31762]]

sludge was disposed. The Agency has decided to more specifically 
describe the type of information needed in order to clarify the 
requirement. The recordkeeping requirement in the final rule will 
include: The volume of waste generated and disposed of off site; 
documentation showing when the waste volumes were generated and sent 
off site; the name and location of the receiving facility; and 
documentation confirming receipt of the waste by the receiving 
facility. The Agency believes that these requirements will ensure that 
there is sufficient information available to document the quantity of 
waste generated and identify the landfill that received the waste, 
without the need to establish the recordkeeping requirements as 
conditions to the exemption. The Agency expects that generators will 
typically retain records for shipments of solid waste to off-site 
landfills that will contain the information included in the 
recordkeeping requirement.

D. Scope and Applicability of the Exemption

    The proposed rule exempts waste from one industrial sector 
(automobile manufacturers) that uses a specific aluminum conversion 
process (zinc phosphating). Several commenters urged EPA to expand the 
exemption to include other generators in other industries. Commenters 
argued that other sectors related to automobile manufacturing 
(categories under NAICS code 336 such as travel trailer manufacturers 
and parts manufacturers) and other industrial sectors (aerospace 
industry) use the same conversion coating processes. One commenter also 
suggested that the amendment to the listing be expanded to include auto 
manufacturing processes beyond the zinc phosphating process. This 
commenter suggested that the exemption be expanded to include processes 
``where neither hexavalent chromium nor cyanide is used in the chemical 
conversion coating process.'' The commenter believes that this language 
would better reflect EPA's intent in the original F019 listing.
    The Agency is not expanding the scope of the exemption in the final 
rule to include other manufacturing categories. As described in the 
proposal, the Agency has a wealth of data from the automobile 
manufacturing/assembly facilities derived from the delisting petitions 
for 13 motor vehicle manufacturing facilities. These data include 
material safety data sheets and the analytical data compiled from the 
analyses of the F019 sludge samples from these facilities. The sludge 
samples were analyzed for approximately 240 chemicals, which yielded a 
large data base for the proposed rule (e.g., for a key constituent 
nickel, 106 samples were analyzed for nickel content and 193 were 
analyzed for leachable nickel). In comparison, the commenters did not 
provide any documentation to support their contention that the 
phosphating process used by the other generators cited is the same as 
that found at motor vehicle manufacturing facilities. Furthermore, 
commenters did not provide any analytical data to show that the 
associated wastestreams are the same or ``virtually identical.'' 
Therefore, the Agency has no basis to consider expanding the exemption.
    Finally, the Agency clearly noted in the preamble to the proposed 
rule that it was not reopening any other aspect of the F019 listing: 
``EPA is not reopening any aspect of the F019 listing other than those 
specifically identified in this proposal, and will not respond to any 
comments that address issues beyond the specific proposals outlined in 
this notice.'' See 72 FR 2223. Therefore, the Agency did not entertain 
any more general revisions to the F019 listing to exclude waste from 
processes where neither hexavalent chromium nor cyanide is used. In 
addition, the Agency has no data to indicate that hexavalent chromium 
and cyanide are the only constituents of concern in various conversion 
coating processes. In fact, although the F019 waste from the automotive 
manufacturers did not contain significant levels of hexavalent chromium 
or cyanide, the Agency found that the levels of nickel and arsenic are 
of some concern.

E. Applicability to Recycled Waste

    In the proposed rule, the Agency stated that it was not aware of 
any recycling or reclamation of F019 sludges, and believed that current 
market conditions do not support such recycling for the purpose of 
recovering the metal content of the waste. The Agency requested comment 
on whether its understanding was accurate, and whether recycling of 
F019 waste is economically feasible. The comments the Agency received 
on this question confirmed that F019 wastes from automotive 
manufacturing are not currently recycled for metal recovery. However, 
commenters noted that, if the waste was not a listed hazardous waste, 
potential avenues of recycling, reclamation or other beneficial use of 
the sludge could develop in the marketplace, such as use as an 
admixture for concrete. Commenters urged the Agency to modify the 
exemption to include wastes that are recycled in some fashion.
    The Agency has no documented information to indicate a market 
exists for recovering the metals in F019 waste from motor vehicle 
manufacturers. Some commenters appear to believe that the amended 
listing would allow beneficial uses of the sludge to develop. However, 
the Agency notes that the exemption requires the sludge to be disposed 
in a landfill that meets the specified liner conditions, and the 
requirement that the generator not place the waste on the land prior to 
disposal. Therefore, using the sludge as an admixture for concrete 
would not meet this condition, and the use of F019 sludge in this way 
may subject the materials to regulation as ``use constituting 
disposal'' (see 40 CFR 266.20).
    The exemption being promulgated by the Agency in this final rule 
does not eliminate the possibility of legitimate reuse of the sludge, 
whether or not the sludge carries the F019 listing code. However, the 
Agency did not attempt to evaluate the legitimacy of potential 
recycling uses of the F019 sludge, and the final rule does not address 
such uses. The Agency is evaluating revisions to the definition of 
solid waste that may relate to the legitimate reclamation of various 
wastes. See the proposed rules published March 26, 2007 (72 FR 14172) 
and October 28, 2005 (68 FR 61588). However, these proposed actions are 
currently limited to reclamation activities and would not apply to 
recycling of materials that are used to produce products that are 
applied to or placed on the land.

F. Interrelationship Between the Exemption and Delistings

    In the proposal, the Agency discussed the interrelationship between 
the proposed exemption and F019 listings (which is complicated by the 
overlay of state authorizations). The Agency indicated that if the 
revisions to the F019 listing are adopted by authorized state programs, 
then the existing delistings would not be needed to exclude the waste 
from the listing, provided the waste is not placed on the land prior to 
shipment to a landfill, and the landfill unit meets the specified liner 
requirements. That is, the subject sludge would never become an F019 
waste if the exemption conditions are met, so a delisting is not 
needed. The Agency suggested that a facility with a delisting ``may 
wish to seek to have its delisting withdrawn'' to avoid confusion over 
implementation of the exemption. One commenter requested that the 
Agency confirm that facilities

[[Page 31763]]

with delistings are not required to withdraw them, and that these 
delistings would remain in effect until they are withdrawn under the 
applicable administrative procedures. The commenter was concerned that 
there may be circumstances under which facilities may wish to continue 
to manage their wastes pursuant to their delistings.
    As the Agency stated in the proposal, a facility has the option of 
continuing to manage its waste as nonhazardous if it complies with the 
applicable delisting conditions, rather than the conditions set out in 
the exemption. The Agency agrees with the commenter that a facility 
with a delisting (which is codified in Appendix IX to part 261) is not 
required to withdraw it. This delisting would remain in effect unless 
it is withdrawn through the applicable administrative procedures (e.g., 
Sec.  260.20 would apply for a Federal delisting). However, the 
generators in this situation are encouraged to explore the need for 
existing delistings with state authorities, given the broad coverage of 
the exemption, and the applicability of state regulations. See the 
discussion below in Section VI. State Authorization for additional 
information on the authorization process.

G. Waste Analysis

    One commenter noted that EPA did not conduct leaching tests of the 
F019 wastes at multiple pH values, as suggested in the guidance manual 
for delisting petitions. The commenter stated that EPA did not explain 
why multiple pH testing was not conducted for the proposed F019 listing 
modification, when such multiple pH testing was required for the 
approval of delisting petitions for wastes that have been stabilized 
with chemical reagents. The commenter pointed out that the exempted 
F019 waste may be disposed of in a variety of different landfills with 
varying pH environments.
    In response, the Agency notes that the exemption for these F019 
wastes is not being promulgated as a delisting; rather it is an 
amendment to the listing, thus the delisting guidance is not directly 
germane. Furthermore, the document cited by the commenter is only 
guidance suggested for delisting petitions. In fact, testing at 
multiple pHs was not deemed necessary for the numerous delistings 
issued for specific F019 wastes generated by vehicle manufacturers. In 
any case, the amendment to the F019 listing is based on a wealth of 
data generated for 13 delistings (see the proposed rule at 72 FR 2226 
for the 13 facilities). These data included extensive leaching data 
obtained using the Toxicity Characteristic Leaching Procedure (TCLP), 
which the Agency evaluated using the maximum detected levels in our 
risk analysis. For example, the data set included 163 TCLP results for 
nickel, from which the maximum value was used.
    The Agency has used the Toxicity Characteristic Leaching Procedure 
(TCLP) extensively to evaluate the leaching mobility for waste 
constituents. The TCLP is the method specified for evaluating wastes 
for the hazardous waste Toxicity Characteristic (Sec.  261.24). In 
addition, the Agency has used the TCLP extensively in evaluating wastes 
for listing as a hazardous waste.\8\ The TCLP test procedure is 
documented in EPA's compendium of analytical and sampling methods that 
have been evaluated and approved for use in complying with the RCRA 
regulations.\9\ The Agency has used other extraction methods in some 
listing determinations. For example, the Agency has used another 
extraction method, the Synthetic Precipitation Leaching Procedure 
(SPLP, SW-846 method 1312) in cases where disposal in MSWLFs was 
unlikely and disposal in on-site industrial landfills was the most 
probable scenario (see the Inorganic Chemical Manufacturing listing, 
September 14, 2000; 65 FR 55684). However, in the case of the F019 
amendment, there is no indication that the segment of the vehicle 
manufacturing industry at issue will dispose of the exempt waste in on-
site landfills. To the contrary, industry commenters stated that it was 
extremely unlikely that they would construct landfills on site for 
disposal of this waste.\10\ In addition, the SPLP is a relatively 
dilute acid solution and is generally considered less aggressive than 
the TCLP for metal extraction (e.g., see the data for lead debris, 63 
FR 70189, December 18, 1998), although this depends on the form of the 
chemicals in the waste and the waste matrix.
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    \8\ For example, see the determinations for Petroleum Refining 
wastes at 63 FR 42110, August 6, 1998, and Chlorinated Aliphatics 
Production wastes at 65 FR 67068, November 8, 2000.
    \9\ See EPA publication SW-846, entitled Test Methods for 
Evaluating Solid Waste, Physical/Chemical Methods.
    \10\ Disposal in an off-site industrial landfill, while 
possible, appears less likely than disposal in a municipal solid 
waste landfill if only because of the relatively low number of off-
site industrial landfills compared to the large number of municipal 
landfills. As of 2005, EPA estimates that about 1,654 municipal 
landfills were operating (https://www.epa.gov/epaoswer/non-hw/muncpl/
facts.htm) vs. perhaps 10 to 20 off-site commercial industrial 
landfills (see Cost and Economic Impact Analysis of the CESQG 
Rulemaking, USEPA, June1996 available at https://www.epa.gov/
epaoswer/hazwaste/sqg/cost/ria.pdf). Furthermore, the Agency expects 
that off-site modern commercial industrial landfills are likely to 
have liner systems with composite liners in any case.
---------------------------------------------------------------------------

    Use of leaching tests other than the TCLP have been considered by 
the Agency for special wastes, such as stabilized waste that may have 
relatively high pH and wastes containing high levels of specific 
chemicals (e.g., mercuric sulfide, see the listing for Chlorinated 
Aliphatics Production wastes cited above). In the case of the F019 
waste at issue, numerous samples of the waste were evaluated by testing 
their pH; the data show that the median pH of the samples tested was 
7.78, or close to neutrality (see summary data in the docket). Due to 
the lack of any special characteristics of the F019 waste, the Agency 
does not believe the waste requires any special leaching testing. 
Therefore, while the TCLP test may be more representative of a MSWLF 
environment, EPA believes that the testing for the F019 exemption is 
sufficient, considering the nature of the waste (wastewater treatment 
sludge), the large number and variety of waste samples that were 
analyzed in support of the delisting petitions, and the plausible 
disposal in a MSWLF.
    However, the Agency recognizes the possible limitations of the TCLP 
test data. Extending the exemption to industrial landfills (i.e., 
landfills that do not accept municipal waste) adds some additional 
uncertainty to the analysis, due to the potential for somewhat 
different leaching environments. Moreover, the regulatory programs in 
place for nonhazardous industrial waste vary from state to state.\11\ 
Therefore, the authorized states that adopt this exemption have the 
option to consider the need for any further limitations on the specific 
landfill conditions they may deem appropriate, depending on their 
existing regulatory program for industrial solid waste.
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    \11\ See the report by Association of State and Territorial 
Solid Waste Management Officials (ASTSWMO), ``Non-Municipal, 
Subtitle D Waste Survey,'' March 1996, and the EPA report, ``State 
Requirements for Industrial Non-Hazardous Waste Management 
Facilities,'' October 1995.
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H. Other Issues

    One commenter suggested that the Agency revise the regulatory 
language to clarify that waste meeting the exemption conditions is 
still subject to regulation as a hazardous waste if the waste exhibits 
any of the hazardous waste characteristics specified in Subpart C of 40 
CFR part 261 (Sec. Sec.  261.20 through 261.24). Commenters also 
encouraged the Agency to clarify that the exempt waste is not subject 
to

[[Page 31764]]

regulation as a hazardous waste at the point of generation.
    The Agency agrees with both of the commenters' suggestions and the 
Agency is modifying the listing description in the final rule to 
reflect these changes. The preamble to the proposed rule made it clear 
that the exempt waste would still be subject to the hazardous waste 
characteristics (see 72 FR 2229). In addition, the Agency's intent was 
to have the exemption apply from the point of generation, as evidenced 
by the preamble to the proposed rule that states: ``Wastes that meet 
this condition would be exempted from the listing from their point of 
generation, and would not be subject to any RCRA Subtitle C management 
requirements for generation, storage, transport, treatment, or disposal 
(including the land disposal restrictions)'' (see 72 FR 2221). 
Therefore, the final rule will specify that the wastes ``will not be 
subject to this listing at the point of generation,'' if the wastes are 
managed according to the conditions of the exemption.

VI. State Authorization

    Under section 3006 of RCRA, EPA may authorize a qualified state to 
administer and enforce a hazardous waste program within the state in 
lieu of the federal program, and to issue and enforce permits in the 
state. Following authorization, the state requirements authorized by 
EPA apply in lieu of equivalent Federal requirements and become 
Federally-enforceable as requirements of RCRA. EPA maintains 
independent authority to bring enforcement actions under RCRA sections 
3007, 3008, 3013, and 7003. Authorized states also have independent 
authority to bring enforcement actions under state law.
    A state may receive authorization by following the approval process 
described in 40 CFR part 271. Part 271 of 40 CFR also describes the 
overall standards and requirements for authorization. After a state 
receives initial authorization, new Federal regulatory requirements 
promulgated under the authority in the RCRA statute do not apply in 
that state until the state adopts and receives authorization for 
equivalent state requirements. The state must adopt such requirements 
to maintain authorization. In contrast, under RCRA section 3006(g), (42 
U.S.C. 6926(g)), new Federal requirements and prohibitions imposed 
pursuant to the 1984 Hazardous and Solid Waste Amendments (HSWA) take 
effect in authorized states at the same time that they take effect in 
unauthorized states. Although authorized states still are required to 
update their hazardous waste programs to remain equivalent to the 
Federal program, EPA carries out HSWA requirements and prohibitions in 
authorized states, including the issuance of new permits implementing 
those requirements, until EPA authorizes the state to do so. Authorized 
states are required to modify their programs only when EPA promulgates 
Federal requirements that are more stringent or broader in scope than 
existing Federal requirements.
    RCRA section 3009 allows the states to impose standards more 
stringent than those in the Federal program. See also 40 CFR 271.1(i). 
Therefore, authorized states are not required to adopt Federal 
regulations, either HSWA or non-HSWA, that are considered less 
stringent.
    This rule is promulgated pursuant to non-HSWA authority. The 
changes in this rule are less stringent than the current Federal 
requirements. Therefore, states will not be required to adopt and seek 
authorization for these changes. EPA will implement the changes to the 
exemptions only in those states which are not authorized for the RCRA 
program. Nevertheless, EPA believes that this rule has considerable 
merit, and the Agency thus strongly encourages states to amend their 
programs and become Federally-authorized to implement these rules.

VII. Comprehensive Environmental Response, Compensation, and Liability 
Act (CERCLA) Designation and List of Hazardous Substances and 
Reportable Quantities

    The Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (CERCLA) defines the term ``hazardous substance'' 
to include RCRA listed and characteristic hazardous wastes. When EPA 
adds a hazardous waste under RCRA, the Agency also will add the waste 
to its list of CERCLA hazardous substances. EPA also establishes a 
reportable quantity, or RQ, for each CERCLA hazardous substance. EPA 
provides a list of the CERCLA hazardous substances along with their RQs 
in Table 302.4 at 40 CFR 302.4. If a person in charge of a vessel or 
facility that releases a CERCLA hazardous substance in an amount that 
equals or exceeds its RQ, then that person must report that release to 
the National Response Center (NRC) pursuant to CERCLA section 103. That 
person also may have to notify state and local authorities.\12\
---------------------------------------------------------------------------

    \12\ See section 304(a) of the Emergency Planning and Community 
Right to Know Act (EPCRA) and 40 CFR 355.40.
---------------------------------------------------------------------------

    Since this rule is amending the scope of the EPA Hazardous Waste 
No. F019 under 40 CFR 261.31 listing to exclude wastewater treatment 
sludges from zinc phosphating, when such phosphating is used in the 
motor vehicle manufacturing process, and if the wastes are disposed in 
a landfill meeting certain liner design criteria, the Table 302.4 at 40 
CFR 302.4 is also amended to adopt the same definition and scope.

VIII. Relationship to Other Rules--Clean Water Act

    This action's final regulatory changes will not: (1) Increase the 
amount of discharged wastewater pollutants at the industry or facility 
levels; or (2) interfere with the ability of industrial generators and 
recyclers of electroplating residuals to comply with the Clean Water 
Act requirements (e.g., Metal Finishing Effluent Guidelines, 40 CFR 
Part 433).

IX. Statutory a