[Federal Register Volume 69, Number 191 (Monday, October 4, 2004)]
[Proposed Rules]
[Pages 59156-59165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22235]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW FRL-7823-9]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Proposed Exclusion
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule and request for comment.
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SUMMARY: EPA is proposing to grant a petition submitted by Bayer
Polymers (Bayer) to exclude (or delist) a certain solid waste generated
by its Baytown, Texas, facility from the lists of hazardous wastes.
EPA used the Delisting Risk Assessment Software (DRAS) in the
evaluation of the impact of the petitioned waste on human health and
the environment.
EPA bases its proposed decision to grant the petition on an
evaluation of waste-specific information provided by the petitioner.
This proposed decision, if finalized, would exclude the petitioned
waste from the requirements of hazardous waste regulations under the
Resource Conservation and Recovery Act (RCRA).
If finalized, EPA would conclude that Bayer's petitioned waste is
nonhazardous with respect to the original listing criteria and that the
generation of K027, K104, K111, and K112 treated effluent from the
facility's waste water treatment plant will not be hazardous at the
point of generation because of the adequately reduces the likelihood of
migration of constituents from this waste. EPA would also conclude that
Bayer's process minimizes short-term and long-term threats from the
petitioned waste to human health and the environment.
DATES: EPA will accept comments until November 3, 2004. EPA will stamp
comments received after the close of the comment period as late. These
late comments may not be considered in formulating a final decision.
Your requests for a hearing must reach EPA by October 19, 2004. The
request must contain the information prescribed in 40 CFR 260.20(d).
ADDRESSES: Please send three copies of your comments. You should send
two copies to the Chief, Corrective Action and Waste Minimization
Section (6PD-C), Multimedia Planning and Permitting Division, U. S.
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas,
Texas 75202. You should send a third copy to the Texas Commission on
Environmental Quality, P.O. Box 13087, Austin, TX 78712. Identify your
comments at the top with this regulatory docket number: [R6-TXDEL-FY04-
Bayer]. You may submit your comments electronically to Michelle Peace
at [email protected].
You should address requests for a hearing to Ben Banipal, Chief,
Corrective Action and Waste Minimization Section (6PD-C), Multimedia
Planning and Permitting Division, U.S. Environmental Protection Agency
Region 6, 1445 Ross Avenue, Dallas, Texas 75202.
FOR FURTHER TECHNICAL INFORMATION CONTACT: Michelle Peace (214) 665-
7430.
SUPPLEMENTARY INFORMATION:
The information in this section is organized as follows:
I. Overview Information
A. What action is EPA proposing?
A. Why is EPA proposing to approve this delisting?
C. How will Bayer manage the waste, if it is delisted?
D. When would the proposed delisting exclusion be finalized?
E. How would this action affect states?
II. Background
A. What is the history of the delisting program?
B. What is a delisting petition, and what does it require of a
petitioner?
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 wastes did Bayer petition EPA to delist?
B. Who is Bayer and what process do they use to generate the
petition waste?
C. What information did Bayer submit to support this petition?
D. What were the results of Bayer's analysis?
E. How did EPA evaluate the risk of delisting this waste?
F. What did EPA conclude about Bayer's analysis?
G. What other factors did EPA consider in its evaluation?
H. What is EPA's evaluation of this delisting petition?
IV. Next Steps
A. With what conditions must the petitioner comply?
B. What happens, if Bayer violates the terms and conditions?
V. Public Comments
A. How may I as an interested party submit comments?
B. How may I review the docket or obtain copies of the proposed
exclusion?
VI. Regulatory Impact
VII. Regulatory Flexibility Act
VIII. Paperwork Reduction Act
IX. Unfunded Mandates Reform Act
X. Executive Order 13045
XI. Executive Order 13084
XII. National Technology Transfer and Advancements Act
XIII. Executive Order 13132 Federalism
I. Overview Information
A. What Action Is EPA Proposing?
EPA is proposing to grant the delisting petition submitted by Bayer
to have its Outfall 007 Treated Effluent (K027, K104, K111, and K112
listed hazardous waste) excluded, or delisted, from the definition of a
hazardous waste.
B. Why Is EPA Proposing To Approve This Delisting?
Bayer's petition requests a delisting for the treated effluent
derived from the treatment of hazardous waste water listed as K027,
K104, K111, and K112 and non-hazardous waste water identified as brine
header waste water. Bayer does not believe that the petitioned waste
meets the criteria for which EPA listed it. Bayer also believes no
additional constituents or factors could cause the waste to be
hazardous. EPA's review of this petition included consideration of the
original listing criteria, and the additional factors required by the
Hazardous and Solid Waste Amendments of 1984 (HSWA). See Section
3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4). In
making the initial delisting
[[Page 59157]]
determination, EPA evaluated the petitioned waste against the listing
criteria and factors cited in Sec. 261.11(a)(2) and (a)(3). Based on
this review, EPA agrees with the petitioner that the waste is
nonhazardous with respect to the original listing criteria. (If EPA had
found, based on this review, that the waste remained hazardous based on
the factors for which the waste was originally listed, EPA would have
proposed to deny the petition.) EPA evaluated the waste with respect to
other factors or criteria to assess whether there is a reasonable basis
to believe that such additional factors could cause the waste to be
hazardous. EPA considered whether the waste is acutely toxic, the
concentration of the constituents in the waste, their tendency to
migrate and to bioaccumulate, their persistence in the environment once
released from the waste, plausible and specific types of management of
the petitioned waste, the quantities of waste generated, and waste
variability. EPA believes that the petitioned waste does not meet the
listing criteria and thus should not be a listed waste. EPA's proposed
decision to delist waste from the Bayer facility is based on the
information submitted in support of this rule, including descriptions
of wastes and analytical data from the Baytown, Texas facility.
C. How Will Bayer Manage the Waste, if it Is Delisted?
Bayer currently discharges the treated effluent as permitted by its
Texas Pollutant Discharge Elimination System (TPDES) permit. If the
delisting exclusion is finalized, Bayer intends to dispose of the
petitioned waste (i.e., treated effluent) in the same manner. This
delisting does not relieve Bayer of its responsibility to comply with
and conduct all tests required by its TPDES permit. The waste would be
delisted in the Outfall Tank prior to its discharge from Outfall 007.
D. When Would the Proposed Delisting Exclusion Be Finalized?
RCRA section 3001(f) specifically requires EPA to provide notice
and an opportunity for comment before granting or denying a final
exclusion. Thus, EPA will not grant the exclusion unless and until it
addresses all timely public comments (including those at public
hearings, if any) on this proposal.
RCRA section 3010(b)(1) at 42 USCA 6930(b)(1), allows rules to
become effective in less than six months after EPA addresses public
comments when the regulated facility does not need the six-month period
to come into compliance. That is the case here, because this rule, if
finalized, would reduce the existing requirements for persons
generating hazardous wastes.
EPA believes that this exclusion should be effective immediately
upon final publication because a six-month deadline is not necessary to
achieve the purpose of section 3010(b), and a later effective date
would impose unnecessary hardship and expense on this petitioner. These
reasons also provide good cause for making this rule effective
immediately, upon final publication, under the Administrative Procedure
Act, 5 U.S.C. 553(d).
E. How Would This Action Affect the States?
Because EPA is issuing this exclusion under the Federal RCRA
delisting program, only States subject to Federal RCRA delisting
provisions would be affected. This would exclude States who have
received authorization from EPA to make their own delisting decisions.
EPA allows the States to impose their own non-RCRA regulatory
requirements that are more stringent than EPA's, under section 3009 of
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a
provision that prohibits a Federally issued exclusion from taking
effect in the State. Because a dual system (that is, both Federal
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's
waste, EPA urges petitioners to contact the state regulatory authority
to establish the status of their wastes under the State law. Delisting
petitions approved by EPA Administrator under 40 CFR 260.22 are
effective in the State of Texas only after the final rule has been
published in the Federal Register.
II. Background
A. What Is the History of the Delisting Program?
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 RCRA. EPA has
amended this list several times and published it in Sec. Sec. 261.31
and 261.32. EPA lists 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. 261.11(a)(2) or (a)(3).
Individual waste streams may vary, however, 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
hazardous.
For this reason, Sec. Sec. 260.20 and 260.22 provide an exclusion
procedure, called delisting, which allows persons to prove that EPA
should not regulate a specific waste from a particular generating
facility as a hazardous waste.
B. What Is a Delisting Petition, and What Does it Require of a
Petitioner?
A delisting petition is a request from a facility to EPA or an
authorized State to exclude wastes from the list of hazardous wastes.
The facility petitions EPA because it does not believe the wastes
should be hazardous under RCRA regulations.
In a delisting petition, the petitioner must show that wastes
generated at a particular facility do not meet any of the criteria for
which the waste was listed. The criteria for which EPA lists a waste
are in Part 261 and further explained in the background documents for
the listed waste.
In addition, under Sec. 260.22, a petitioner must prove that the
waste does not exhibit any of the hazardous waste characteristics (that
is, ignitability, reactivity, corrosivity, and toxicity) and present
sufficient information for EPA to decide whether factors other than
those for which the waste was listed warrant retaining it as a
hazardous waste. See Part 261 and the background documents for the
listed waste.
Generators remain obligated under RCRA to confirm whether their
waste remains nonhazardous based on the hazardous waste characteristics
even if EPA has ``delisted'' the waste.
C. What Factors Must EPA Consider in Deciding Whether To Grant a
Delisting Petition?
Besides considering the criteria in Sec. 260.22(a) and section
3001(f) of RCRA, 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 EPA listed the waste, if a
reasonable basis exists that these additional factors could cause the
waste to be hazardous.
EPA must also consider as hazardous waste mixtures containing
listed hazardous wastes and wastes derived from treating, storing, or
disposing of listed hazardous waste. See Sec. 261.3(a)(2)(iii) and
(iv) and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules,
respectively. These wastes are also eligible for exclusion and remain
hazardous wastes until
[[Page 59158]]
excluded. See 66 FR 27266 (May 16, 2001).
III. EPA's Evaluation of the Waste Information and Data
A. What Waste Did Bayer Petition EPA To Delist?
On June 25, 2003, Bayer petitioned EPA to exclude from the lists of
hazardous waste contained in Sec. Sec. 261.31 and 261.32, the treated
effluent that is discharged pursuant to Bayer's TPDES permit. The
discharge originates at Outfall 007 and is piped to the discharge
location described as the ``diffuser near Hog Island into the Houston
Ship Channel.'' The waste stream is generated from the Bayer facility
located in Baytown, Texas. The waste (EPA Hazardous Waste Nos. K027,
K104, K111, and K112) is effluent, which has been treated at the
facility's waste water treatment plant and is ultimately discharged to
Outfall 007 in accordance with the facility's TPDES permit.
Specifically, in its petition, Bayer requested that EPA grant an
exclusion for 18,071,150 cubic yards (5.745 billion gallons) per
calendar year of treated effluent resulting from the treatment of waste
waters from the manufacturing processes at its facility.
B. Who Is Bayer and What Process Do They Use to Generate the Petition
Waste?
Bayer produces plastics, coatings, polyurethanes, and industrial
chemicals. Bayer is the first facility in the United States to employ
Tower Biology, an onsite waste water treatment plant (the plant)
process that uses bacteria to treat waste above ground to protect
ground water resources. The waste waters treated at the plant are
generated by the various manufacturing operations at the Baytown
facility. Influent waste waters enter the plant via the ``normal waste
water header'' or the ``brine waste water header.'' The waste water
entering the plant via the normal waste water header is placed in the
primary clarifier. From the primary clarifier, the waste water is
placed in a tank that feeds the waste water to a denitrification
reactor prior to treatment in the biological oxidation towers.
Following biological treatment, the waste water is run through a
secondary clarifier. Waste water from the clarifier is sent to an
activated carbon absorption system. Upon exiting the carbon absorption
system, the waste water is fed to a series of filters. After
filtration, the treated waste water is placed in an outfall tank for
subsequent discharge under Bayer's TPDES discharge permit.
Influent waste waters that enter the plant via the ``brine waste
water header'' are placed in dedicated brine tanks and a brine carbon
absorption system. After filtration, the brine waste water is
commingled in the outfall tank with the treated normal waste water
prior to being discharged in accordance with the Bayer TPDES discharge
permit.
Treatment of the waste waters, which result from the manufacturing
process generates the effluent that is classified as K027, K104, K111,
and K112 listed hazardous wastes pursuant to 40 CFR Sec. 261.31. The
40 CFR Part 261 Appendix VII hazardous constituents which are the basis
for listing K027, K104, K111, and K112 hazardous wastes are: toluene
diisocyanate, aniline, benzene, diphenylamine, nitrobenzene,
phenylenediamine, 2,4-dinitrotoluene, 2,4-toluenediamine, o-toluidine,
and p-toluidine.
C. What Information Did Bayer Submit To Support This Petition?
To support its petition, Bayer submitted:
(1) Results of the total constituent analysis for volatile and
semivolatile organics, pesticides, herbicides, dioxins/furans, PCBs and
metals for six samples.
(2) Descriptions of the waste water treatment process and effluent.
D. What Were the Results of Bayer's Analyses?
EPA believes that the descriptions of Bayer's waste water treatment
process, in addition to the analytical data submitted in support of the
petition show that the treated effluent is nonhazardous. Analytical
data from Bayer's treated effluent samples were used in the Delisting
Risk Assessment Software. The data summaries for detected constituents
are presented in Table 1. EPA has reviewed the sampling procedures used
by Bayer and has determined they satisfy EPA's criteria for collecting
representative samples of the variations in constituent concentrations
in the treated effluent. The data submitted in support of the petition
show that constituents in Bayer's waste is presently below health-based
risk levels used in the delisting decision-making. EPA believes that
Bayer has successfully demonstrated that the treated effluent is
nonhazardous.
Table 1.--Maximum Total Constituent Concentrations of the Treated
Effluent and Corresponding Delisting Limits \1\
------------------------------------------------------------------------
Waste stream total Maximum allowable
Chemical name concentration (mg/ concentration (mg/
kg) kg)
------------------------------------------------------------------------
Phenylenediamine, m-........ 5.00E-02............ 8.79E-01
Bis(2-ethylhexyl)phthalate.. 1.94E-03............ 1.26E+03
Di-n-octyl phthalate........ 2.50E-03............ 4.54E+02
Dinitrotoluene, 2,4-........ 1.50E-03............ 4.51E-03
Diphenylamine............... 1.50E-03............ 1.18E+01
Dioxane, 1,4-............... 1.40E+00............ 1.76E+00
Pyrene...................... 2.00E-03............ 3.90E+01
Fluoranthene................ 2.50E-03............ 2.46E+01
Cyanide..................... 2.84E-02............ 4.60E-01
Aniline..................... 2.56E-03............ 6.80E-01
Tetrachloroethane, 1,1,1,2-. 1.00E-03............ 7.03E-01
Acetone..................... 2.80E+00............ 1.46E+01
Chloroform.................. 1.40E-02............ 7.70E-02
Benzene..................... 3.00E-03............ 5.90E-02
Mercury..................... 6.80E-04............ 3.23E-02
Nickel...................... 9.16E-02............ 1.13E+01
Thallium.................... 5.00E-03............ 3.34E-02
Antimony.................... 7.10E-03............ 8.16E-02
Arsenic..................... 8.20E-03............ 3.85E-01
[[Page 59159]]
Barium...................... 1.04E-01............ 2.22E+01
Chromium.................... 9.10E-03............ 1.53E+02
Copper...................... 1.02E-01............ 3.62E+03
Vanadium.................... 1.38E-02............ 8.38E+00
Zinc........................ 8.33E-02............ 1.12E+02
Methylene chloride.......... 1.00E-03............ 2.90E-02
Bromodichloromethane........ 2.00E-03............ 7.19E-02
Selenium.................... 9.10E-03............ 2.30E-01
Methyl ethyl ketone......... 1.00E-02............ 8.79E+01
Di-n-butyl phthalate........ 2.08E-03............ 1.49E+02
Toluidine, o-............... 2.00E-03............ 1.71E-02
Acetophenone................ 8.90E-04............ 1.58E+01
Toluidine, p-............... 1.50E-03............ 2.15E-02
Toluene diisocyanate........ <1.0 E-02........... 1.0E-02
Nitrobenzene................ 1.50E-03............ 7.88E-02
2,4 toluenediamine.......... <1.0 E-02........... 1.21E-03
------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent
found in any one sample. These levels do not necessarily represent the
specific levels found in one sample.
< Denotes that the constituent was below the detection limit.
Concentrations reported below detect are not believed to be present in
the waste.
E. How Did EPA Evaluate the Risk of Delisting This Waste?
For this delisting determination, we assumed that the most
reasonable, worst case scenario would be if the effluent were disposed
in a surface impoundment and we considered transport of waste
constituents through ground water, surface water and air.
We evaluated Bayer'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. The DRAS uses EPA's
Composite Model for leachate migration with Transformation Products
(EPACMTP) to predict the potential for release to groundwater from the
wastes and subsequent routes of exposure to a receptor. From a release
to ground water, we considered routes of exposure to a human receptor
via ingestion of contaminated ground water, inhalation from ground
water via showering and dermal contact while bathing. The DRAS program
evaluates the subsequent routes of exposure to a human receptor from
such releases through exposure pathways of fish ingestion and ingestion
of drinking water. The DRAS also considers releases of waste particles
and volatile emissions to air from the surface of an open impoundment.
From a release to air, we considered as routes of exposure of
inhalation of particulates and absorption into the lungs; ingestion of
particulates eliminated from respiratory passages and subsequently
swallowed, air deposition of particulates and subsequent ingestion of
the soil/waste mixture; and inhalation of volatile constituents.
We used the maximum estimated waste volume and the maximum reported
total concentration to estimate the constituent concentrations in the
ground water, soil, surface water and/or air.
Assuming a cancer risk of 1 x 10 - 5 and a hazard quotient of one,
the DRAS program back calculated a maximum allowable concentration
level which did not exceed protective levels in the waste for each
constituent at the given annual waste volume of 18,071,150 cubic yards
(5.475 billion gallons).
F. What Did EPA Conclude About Bayer Analysis?
EPA concluded, after reviewing Bayer's waste water treatment
process that no other hazardous constituents of concern, other than
those for which tested, are likely to be present or formed as reaction
products or by-products in Bayer's wastes. In addition, on the basis of
explanations and analytical data provided by Bayer, pursuant to Sec.
260.22, EPA concludes that the effluent does not exhibit any of the
characteristics of ignitability, corrosivity, reactivity, or toxicity.
See Sec. Sec. 261.21, 261.22 ,261.23, and 261.24 respectively.
G. What Other Factors Did EPA Consider in Its Evaluation?
During the evaluation of this petition, EPA also considered the
potential impact of the petitioned waste via non-ground water routes
(i.e., air emissions and surface runoff) for the treated effluent. With
regard to airborne dispersion in particular, EPA believes that exposure
to airborne contaminants from the petitioned waste is unlikely. No
appreciable air releases are likely from the treated effluent under any
likely disposal conditions. EPA evaluated the potential hazards
resulting from the unlikely scenario of airborne exposure to hazardous
constituents released from the waste water in an open surface
impoundment. The results of this worst-case analysis indicated that
there is no substantial present or potential hazard to human health and
the environment from airborne exposure to constituents from the treated
effluent waste water.
H. What Is EPA's Evaluation of This Delisting Petition?
The descriptions by Bayer of the hazardous waste process and
analytical characterization, with the proposed verification testing
requirements (as discussed later in this notice), provide a reasonable
basis for EPA to grant the exclusion. The data submitted in support of
the petition show that constituents in the waste are below the maximum
allowable concentrations (See Table 1). EPA believes that the treated
effluent generated by Bayer contains hazardous constituents at levels,
which will present minimal short-term and long-term threats to human
health and the environment.
Thus, EPA believes that it should grant to Bayer an exclusion for
the treated effluent. EPA believes that the
[[Page 59160]]
data submitted in support of the petition shows the Bayer treated
effluent to be nonhazardous.
EPA has reviewed the sampling procedures used by Bayer and has
determined they satisfy EPA's criteria for collecting representative
samples of variable constituent concentrations in the treated effluent.
The data submitted in support of the petition show that constituents in
Bayer's wastes are presently below the compliance-point concentrations
used in the delisting decision-making process and would not pose a
substantial hazard to the environment and the public. EPA believes that
Bayer has successfully demonstrated that the treated effluent is
nonhazardous.
EPA, therefore, proposes to grant an exclusion to Bayer, in
Baytown, Texas, for the treated effluent described in its June 2003
petition. EPA's decision to exclude this waste is based on analysis
performed on samples taken of the treated effluent.
If EPA finalizes the proposed rule, EPA will no longer regulate the
treated effluent under Parts 262 through 268 and the permitting
standards of Part 270.
IV. Next Steps
A. With What Conditions Must the Petitioner Comply?
The petitioner, Bayer, must comply with the requirements in 40 CFR
Part 261, Appendix IX, Table 2 as amended by this notice. The text
below gives the rationale and details of those requirements.
(1) Delisting Levels
This paragraph provides the levels of constituent concentrations
that Bayer must test for in the treated effluent, below which these
wastes would be considered nonhazardous.
EPA selected the set of inorganic and organic constituents
specified in paragraph (1) and listed in 40 CFR Part 261, Appendix IX,
Table 2, based on information in the petition. EPA compiled the
inorganic and organic constituents list from descriptions of the
manufacturing process used by Bayer, previous test data provided for
the waste, and the respective health-based levels used in delisting
decision-making. These delisting levels correspond to the allowable
levels measured in the total concentrations of the treated effluent.
The limits described here do not relieve Bayer of its duty to comply
with discharge limits described in its TPDES permit for the effluent.
(2) Waste Holding and Handling
Waste classification as non-hazardous cannot begin until compliance
with the limits set in paragraph (1) has occurred for two consecutive
quarterly sampling events. For example, if Bayer is issued a final
exclusion in August, the first quarter samples are due in November and
the second quarter samples are due in February. If EPA deems that both
the first and second quarter samples (a total of four) meet all the
delisting limits, classification of the waste as non-hazardous cannot
begin until March. If constituent levels in any sample taken by Bayer
exceed any of the delisting levels set in paragraph (1), Bayer must do
the following: (i) notify EPA in accordance with paragraph (6), and;
(ii) manage and dispose the treated effluent per its TPDES discharge
permit as hazardous waste generated under Subtitle C of RCRA. The
delisting for the treated effluent applies only during periods of TPDES
compliance.
(3) Verification Testing Requirements
Bayer must complete a verification testing program on the treated
effluent to assure that the waste does not exceed the maximum levels
specified in paragraph (1). If EPA determines that the data collected
under this paragraph does not support the data provided for in the
petition, the exclusion will not cover the tested waste. This
verification program operates on two levels.
The first part of the quarterly verification testing program
consists of testing a batch of treated effluent for specified indicator
parameters as per paragraph (1). Each quarterly sampling event will
consist of at least two samples of the treated effluent. Levels of
constituents measured in the samples of the treated effluent that do
not exceed the levels set forth in paragraph (1) can be considered
nonhazardous after two consecutive quarters of sampling data meet the
levels listed in paragraph (1).
The second part of the verification testing program is the annual
testing of two representative composite samples of treated effluent for
all constituents specified in paragraph (1).
If Bayer demonstrates for two consecutive quarters complete
attainment of all specified limits, then Bayer may request approval of
EPA to reduce the frequency of testing to annually. If, after review of
performance of the treatment system, EPA finds that annual testing is
adequately protective of human health and the environment, then EPA may
authorize Bayer to reduce the quarterly comprehensive sampling
frequency to an annual basis. If the annual testing of the waste does
not meet the delisting levels in paragraph 1, Bayer must notify EPA
according to the requirements in paragraph 6. EPA will then take the
appropriate actions necessary to protect human health and the
environment per paragraph 6. Bayer must provide sampling results that
support the rationale that the delisting exclusion should not be
withdrawn.
The exclusion is effective upon publication in the Federal Register
but the change in waste classification as ``non-hazardous'' cannot
begin until two consecutive quarters of verification sampling comply
with the levels specified in paragraph 1. The waste classification as
``non-hazardous'' is also not authorized if Bayer fails to perform the
quarterly and yearly testing as specified herein. Should Bayer fail to
conduct the quarterly/yearly testing as specified herein, then disposal
of treated effluent as delisted waste may not occur in the following
quarter(s)/year(s) until Bayer obtains the written approval of EPA.
(4) Changes in Operating Conditions
Paragraph (4) would allow Bayer the flexibility of modifying its
processes (for example, changes in equipment or change in operating
conditions) to improve its treatment processes. However, Bayer must
prove the effectiveness of the modified process and request approval
from EPA. Bayer must manage wastes generated during the new process
demonstration as hazardous waste through verification sampling within
30 days of start-up.
(5) Data Submittals
To provide appropriate documentation that the Bayer facility is
managing the treated effluent, Bayer must compile, summarize, and keep
delisting records on-site for a minimum of five years. It should keep
all analytical data obtained through paragraph (3), including quality
control information, for five years. Paragraph (5) requires that Bayer
furnish these data upon request for inspection by any employee or
representative of EPA or the State of Texas.
If the proposed exclusion is made final, then it will apply only to
18,071,150 cubic yards (5.475 billion gallons) per calendar year of
treated effluent generated at the Bayer facility after successful
verification testing.
EPA would require Bayer to submit additional verification data
under any of the following circumstances:
(a) If Bayer significantly alters the manufacturing process
treatment system except as described in paragraph (4).
(b) If Bayer uses any new manufacturing or production
[[Page 59161]]
process(es), or significantly changes the current process(es) described
in its petition; or
(c) If Bayer makes any changes that could affect the composition or
type of waste generated.
Bayer must submit a modification to the petition complete with full
sampling and analysis for circumstances where the waste volume changes
and/or additional waste codes are added to the waste stream.
Bayer must manage waste volumes greater than 18,071,150 cubic yards
(5.475 billion gallons) per calendar year of treated effluent as
hazardous waste until EPA grants a revised exclusion. When this
exclusion becomes final, the management of the treated effluent by
Bayer covered in this petition would be relieved from Subtitle C
jurisdiction. Bayer may not classify the waste as non-hazardous until
the revised exclusion is finalized.
(6) Reopener
The purpose of paragraph (6) is to require Bayer to disclose new or
different information related to a condition at the facility or
disposal of the waste, if it is pertinent to the delisting. Bayer must
also use this procedure, if the waste sample in the annual testing
fails to meet the levels found in paragraph (1). This provision will
allow EPA to reevaluate the exclusion, if a source provides new or
additional information to EPA. EPA will evaluate the information on
which it based the decision to see, if it is still correct, or if
circumstances have changed so that the information is no longer correct
or would cause EPA to deny the petition, if presented.
This provision expressly requires Bayer to report differing site
conditions or assumptions used in the petition in addition to failure
to meet the annual testing conditions within 10 days of discovery. If
EPA discovers such information itself or from a third party, it can act
on it as appropriate. The language being proposed is similar to those
provisions found in RCRA regulations governing no-migration petitions
at Sec. 268.6.
It is EPA's position that it has the authority under RCRA and the
Administrative Procedures Act (APA), 5 U.S.C. Sec. 551 (1978) et seq.,
to reopen a delisting decision. EPA may reopen a delisting decision
when it receives new information that calls into question the
assumptions underlying the delisting.
EPA believes a clear statement of its authority in delistings is
merited in light of EPA's experience. See Reynolds Metals Company at 62
FR 37694 (July 14, 1997) and 62 FR 63458 (December 1, 1997) where the
delisted waste leached at greater concentrations into the environment
than the concentrations predicted when conducting the TCLP, thus
leading EPA to repeal the delisting. If an immediate threat to human
health and the environment presents itself, EPA will continue to
address these situations case-by-case. Where necessary, EPA will make a
good cause finding to justify emergency rulemaking. See APA section
553(b).
B. What Happens, if Bayer Violates the Terms and Conditions?
If Bayer violates the terms and conditions established in the
exclusion, EPA will start procedures to withdraw the exclusion. Where
there is an immediate threat to human health and the environment, EPA
will evaluate the need for enforcement activities on a case-by-case
basis. EPA expects Bayer to conduct the appropriate waste analysis and
comply with the criteria explained above in paragraph (1) of the
exclusion.
V. Public Comments
A. How May I as an Interested Party Submit Comments?
EPA is requesting public comments on this proposed decision. Please
send three copies of your comments. Send two copies to the Chief,
Corrective Action and Waste Minimization Section, Multimedia Permitting
and Planning Division, U.S. Environmental Protection Agency Region 6,
1445 Ross Avenue, Dallas, Texas 75202. Send a third copy to the
Industrial Hazardous Waste Permits Division, Technical Evaluation Team,
Texas Commission on Environmental Quality, P.O. Box 13087, Austin, TX
78711-3087. Identify your comments at the top with this regulatory
docket number: R6-FY04-Bayer. You may submit your comments
electronically to Michelle Peace at [email protected].
B. How May I Review the Docket or Obtain Copies of the Proposed
Exclusion?
You may review the RCRA regulatory docket for this proposed rule at
the U.S. Environmental Protection Agency Region 6, 1445 Ross Avenue,
Dallas, TX 75202. It is available for viewing in EPA Freedom of
Information Act Review Room from 9 a.m. to 4 p.m., Monday through
Friday, excluding Federal holidays. Call (214) 665-6444 for
appointments. The public may copy material from any regulatory docket
at no cost for the first 100 pages and at fifteen cents per page for
additional copies.
VI. Regulatory Impact
Under Executive Order 12866, EPA must conduct an ``assessment of
the potential costs and benefits'' for all ``significant'' regulatory
actions.
The proposal to grant an exclusion is not significant, since its
effect, if promulgated, would be to reduce the overall costs and
economic impact of EPA's hazardous waste management regulations. This
reduction would be achieved by excluding waste generated at a specific
facility from EPA's lists of hazardous wastes, thus enabling a facility
to manage its waste as nonhazardous.
Because there is no additional impact from this proposed rule, this
proposal would not be a significant regulation, and no cost/benefit
assessment is required. The Office of Management and Budget (OMB) has
also exempted this rule from the requirement for OMB review under
Section (6) of Executive Order 12866.
VII. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, whenever an
agency is required to publish a general notice of rulemaking for any
proposed or final rule, it must prepare and make available for public
comment a regulatory flexibility analysis which describes the impact of
the rule on small entities (that is, small businesses, small
organizations, and small governmental jurisdictions). No regulatory
flexibility analysis is required, however, if the Administrator or
delegated representative certifies that the rule will not have any
impact on small entities.
This rule, if promulgated, will not have an adverse economic impact
on small entities since its effect would be to reduce the overall costs
of EPA's hazardous waste regulations and would be limited to one
facility. Accordingly, EPA hereby certifies that this proposed
regulation, if promulgated, will not have a significant economic impact
on a substantial number of small entities. This regulation, therefore,
does not require a regulatory flexibility analysis.
VIII. Paperwork Reduction Act
Information collection and recordkeeping requirements associated
with this proposed rule have been approved by the Office of Management
and Budget (OMB) under the provisions of the Paperwork Reduction Act of
1980 (Public Law 96 511, 44 U.S.C. 3501 et seq.) and have been assigned
OMB Control Number 2050 0053.
IX. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA),
[[Page 59162]]
Public Law 104-4, which was signed into law on March 22, 1995, EPA
generally must prepare a written statement for rules with Federal
mandates that may result in estimated costs to State, local, and tribal
governments in the aggregate, or to the private sector, of $100 million
or more in any one year.
When such a statement is required for EPA rules, under section 205
of the UMRA EPA must identify and consider alternatives, including the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. EPA must select that alternative,
unless the Administrator explains in the final rule why it was not
selected or it is inconsistent with law.
Before EPA establishes regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must develop under section 203 of the UMRA a small
government agency plan. The plan must provide for notifying potentially
affected small governments, giving them meaningful and timely input in
the development of EPA's regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising them
on compliance with the regulatory requirements.
The UMRA generally defines a Federal mandate for regulatory
purposes as one that imposes an enforceable duty upon state, local, or
tribal governments or the private sector.
EPA finds that this delisting decision is deregulatory in nature
and does not impose any enforceable duty on any State, local, or tribal
governments or the private sector. In addition, the proposed delisting
decision does not establish any regulatory requirements for small
governments and so does not require a small government agency plan
under UMRA section 203.
X. Executive Order 13045
The Executive Order 13045 is entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997). This order applies to any rule that EPA determines (1) is
economically significant as defined under Executive Order 12866, and
(2) the environmental health or safety risk addressed by the rule has a
disproportionate effect on children. If the regulatory action meets
both criteria, EPA must evaluate the environmental health or safety
effects of the planned rule on children, and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives considered by EPA. This proposed rule is not
subject to E.O. 13045 because this is not an economically significant
regulatory action as defined by Executive Order 12866.
XI. Executive Order 13084
Because this action does not involve any requirements that affect
Indian tribes, the requirements of section 3(b) of Executive Order
13084 do not apply.
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly affects or uniquely affects
the communities of Indian tribal governments, and that imposes
substantial direct compliance costs on those communities, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by the tribal governments.
If the mandate is unfunded, EPA must provide to the Office
Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation.
In addition, Executive Order 13084 requires EPA to develop an
effective process permitting elected and other representatives of
Indian tribal governments to have ``meaningful and timely input'' in
the development of regulatory policies on matters that significantly or
uniquely affect their communities of Indian tribal governments. This
action does not involve or impose any requirements that affect Indian
Tribes. Accordingly, the requirements of section 3(b) of Executive
Order 13084 do not apply to this rule.
XII. National Technology Transfer and Advancement Act
Under Section 12(d) of the National Technology Transfer and
Advancement Act, EPA is directed to use voluntary consensus standards
in its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, business practices, etc.) developed or adopted by
voluntary consensus standard bodies. Where available and potentially
applicable voluntary consensus standards are not used by EPA, the Act
requires that EPA provide Congress, through the OMB, an explanation of
the reasons for not using such standards.
This rule does not establish any new technical standards and thus,
EPA has no need to consider the use of voluntary consensus standards in
developing this final rule.
XIII. Executive Order 13132 Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999) requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' are defined in the
Executive Order to include regulations that 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.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless EPA
consults with State and local officials early in the process of
developing the proposed regulation.
This action does not have federalism implication. It will not have
a substantial direct effect on 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, because it affects only one facility.
Lists of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: September 24, 2004.
Bill Luthans,
Acting Division Director, Multimedia Permitting and Planning Division.
For the reasons set out in the preamble, 40 CFR part 261 is
proposed to be amended as follows:
[[Page 59163]]
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
2. In Table 2 of Appendix IX of part 261 add the following waste
stream in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Waste Excluded Under Sec. Sec. 260.20 and
260.22
Table 2.--Waste Excluded From Specific Sources
------------------------------------------------------------------------
Facility Address Waste description
------------------------------------------------------------------------
* * * * * * *
Bayer Polymers................ Baytown, TX...... Outfall 007 treated
effluent (EPA
Hazardous Waste Nos.
K027, K104, K111,
and K112) generated
at a maximum rate of
18,071,150 cubic
yards (5.475 billion
gallons) per
calendar year after
[publication date of
the final rule] as
it exits the Outfall
Tank and disposed in
accordance with the
TPDES permit.
The delisting levels
set do not relieve
Bayer of its duty to
comply with the
limits set in its
TPDES permit. For
the exclusion to be
valid, Bayer must
implement a
verification testing
program that meets
the following
Paragraphs:
(1) Delisting Levels:
All concentrations
for those
constituents must
not exceed the
maximum allowable
concentrations in mg/
kg specified in this
paragraph.
(A) Outfall No. 7
Treated Effluent
Total Concentrations
(mg/kg): Antimony--
0.0816; Arsenic--
0.385, Barium--22.2;
Chromium--153.0;
Copper--3620.0;
Cyanide--0.46;
Mercury--0.0323;
Nickel--11.3;
Selenium--0.23;
Thallium--0.0334;
Vanadium--8.38;
Zinc--112.0;
Acetone--14.6;
Acetophenone--15.8;
Aniline--0.680;
Benzene--0.0590;
Bis(2-
ethylhexyl)phthalate
-1260.0;
Bromodichloromethane
-0.0719; Chloroform--
0.077; Di-n-octyl
phthalate--454.0;
2,4-Dinitrotoluene--
0.00451;
Diphenylamine--11.8;
1,4-Dioxane--1.76;
Di-n-butyl
phthalate--149.0;
Fluoranthene--24.6;
Methylene chloride--
0.029; Methyl ethyl
ketone--87.9;Nitrobe
nzene--0.0788; m-
phenylenediamine--0.
879; Pyrene--39.0;
1,1,1,2-
Tetrachloroethane--0
.703; o-Toluidine--
0.0171; p-Toluidine--
0.215; 2,4-
Toluenediamine--0.00
121. Toluene
diisocyanate--0.001.
(2) Waste Holding and
Handling:
(A) Waste
classification as
non-hazardous cannot
begin until
compliance with the
limits set in
paragraph (1) for
the treated effluent
has occurred for two
consecutive
quarterly sampling
events. The
delisting for the
treated effluent
applies only during
periods of TPDES
compliance.
(B) If constituent
levels in any sample
taken by Bayer
exceed any of the
delisting levels set
in paragraph (1) for
the treated
effluent, Bayer must
do the following:
(i) notify EPA in
accordance with
paragraph (6) and
(ii) manage and
dispose the treated
effluent as
hazardous waste
generated under
Subtitle C of RCRA.
(3) Quarterly Testing
Requirements: Upon
this exclusion
becoming final,
Bayer may perform
quarterly analytical
testing by sampling
and analyzing the
treated effluent as
follows:
(A)(i) Collect two
representative
composite samples of
the treated effluent
at quarterly
intervals after EPA
grants the final
exclusion. The first
composite samples
may be taken at any
time after EPA
grants the final
approval. Sampling
should be performed
in accordance with
the sampling plan
approved by EPA in
support of the
exclusion.
(ii) Analyze the
samples for all
constituents listed
in paragraph 1. Any
composite sample
taken that exceeds
the delisting levels
listed in paragraph
(1) for the treated
effluent must be
disposed as
hazardous waste in
accordance with the
applicable hazardous
waste requirements
its TPDES discharge
permit.
(iii) Within thirty
(30) days after
taking its first
quarterly sample,
Bayer will report
its first quarterly
analytical test data
to EPA. If levels of
constituents
measured in the
samples of the
treated effluent do
not exceed the
levels set forth in
paragraph (1) of
this exclusion for
two consecutive
quarters, Bayer can
manage and dispose
the nonhazardous
treated effluent
according to all
applicable solid
waste regulations.
(4) Annual Testing:
[[Page 59164]]
(i) If Bayer
completes the
quarterly testing
specified in
paragraph (3) above
and no sample
contains a
constituent with a
level which exceeds
the limits set forth
in paragraph (1),
Bayer may begin
annual testing as
follows: Bayer must
test two
representative
composite samples of
the treated effluent
for all constituents
listed in paragraph
(1) at least once
per calendar year.
(ii) The samples for
the annual testing
shall be a
representative
composite sample
according to
appropriate methods
such as those found
in SW-846 or other
reliable sources
(with the exception
of analyses
requiring the use of
SW-846 methods
incorporated by
reference in 40 CFR
260.11, which must
be used without
substitution) for
all constituents
listed in paragraph
(1).
(iii) The samples for
the annual testing
taken for the second
and subsequent
annual testing
events shall be
taken within the
same calendar month
as the first annual
sample taken.
(4) Changes in
Operating
Conditions: If Bayer
significantly
changes the process
described in its
petition or starts
any processes that
generate(s) the
waste that may or
could affect the
composition or type
of waste generated
as established under
paragraph (1) (by
illustration, but
not limitation,
changes in equipment
or operating
conditions of the
treatment process),
it must notify EPA
in writing; it may
no longer handle the
wastes generated
from the new process
as nonhazardous
until the wastes
meet the delisting
levels set in
paragraph (1) and it
has received written
approval to do so
from EPA.
Bayer must submit a
modification to the
petition complete
with full sampling
and analysis for
circumstances where
the waste volume
changes and/or
additional waste
codes are added to
the waste stream.
(5) Data Submittals:
Bayer must submit the
information
described below. If
Bayer fails to
submit the required
data within the
specified time or
maintain the
required records on-
site for the
specified time, EPA,
at its discretion,
will consider this
sufficient basis to
reopen the exclusion
as described in
paragraph (6). Bayer
must:
(A) Submit the data
obtained through
paragraph 3 to the
Chief, Corrective
Action and Waste
Minimization
Section, Multimedia
Planning and
Permitting Division,
U. S. Environmental
Protection Agency
Region 6, 1445 Ross
Ave., Dallas, Texas
75202, within the
time specified. All
supporting data can
be submitted on CD-
ROM or some
comparable
electronic media.
(B) Compile records
of analytical data
from paragraph (3),
summarized, and
maintained on-site
for a minimum of
five years.
(C) Furnish these
records and data
when either EPA or
the State of Texas
request them for
inspection.
(D) Send along with
all data a signed
copy of the
following
certification
statement, to attest
to the truth and
accuracy of the data
submitted:
``Under civil and
criminal penalty of
law for the making
or submission of
false or fraudulent
statements or
representations
(pursuant to the
applicable
provisions of the
Federal Code, which
include, but may not
be limited to, 18
U.S.C. Sec. 1001
and 42 U.S.C. Sec.
6928), I certify
that the information
contained in or
accompanying this
document is true,
accurate and
complete.''
As to the (those)
identified
section(s) of this
document for which I
cannot personally
verify its (their)
truth and accuracy,
I certify as the
company official
having supervisory
responsibility for
the persons who,
acting under my
direct instructions,
made the
verification that
this information is
true, accurate and
complete.
If any of this
information is
determined by EPA in
its sole discretion
to be false,
inaccurate or
incomplete, and upon
conveyance of this
fact to the company,
I recognize and
agree that this
exclusion of waste
will be void as if
it never had effect
or to the extent
directed by EPA and
that the company
will be liable for
any actions taken in
contravention of the
company's RCRA and
CERCLA obligations
premised upon the
company's reliance
on the void
exclusion.''
(6) Reopener
[[Page 59165]]
(A) If, anytime after
disposal of the
delisted waste Bayer
possesses or is
otherwise made aware
of any environmental
data (including but
not limited to
leachate data or
ground water
monitoring data) or
any other data
relevant to the
delisted waste
indicating that any
constituent
identified for the
delisting
verification testing
is at level higher
than the delisting
level allowed by the
Division Director in
granting the
petition, then the
facility must report
the data, in
writing, to the
Division Director
within 10 days of
first possessing or
being made aware of
that data.
(B) If either the
quarterly or annual
testing of the waste
does not meet the
delisting
requirements in
paragraph 1, Bayer
must report the
data, in writing, to
the Division
Director within 10
days of first
possessing or being
made aware of that
data.
(C) If Bayer fails to
submit the
information
described in
paragraphs
(5),(6)(A) or (6)(B)
or if any other
information is
received from any
source, the Division
Director will make a
preliminary
determination as to
whether the reported
information requires
EPA action to
protect human health
and/or the
environment. Further
action may include
suspending, or
revoking the
exclusion, or other
appropriate response
necessary to protect
human health and the
environment.
(D) If the Division
Director determines
that the reported
information requires
action by EPA, the
Division Director
will notify the
facility in writing
of the actions the
Division Director
believes are
necessary to protect
human health and the
environment. The
notice shall include
a statement of the
proposed action and
a statement
providing the
facility with an
opportunity to
present information
as to why the
proposed EPA action
is not necessary.
The facility shall
have 10 days from
the date of the
Division Director's
notice to present
such information.
(E) Following the
receipt of
information from the
facility described
in paragraph (6)(D)
or (if no
information is
presented under
paragraph (6)(D))
the initial receipt
of information
described in
paragraphs (5),
(6)(A) or (6)(B),
the Division
Director will issue
a final written
determination
describing EPA
actions that are
necessary to protect
human health and/or
the environment. Any
required action
described in the
Division Director's
determination shall
become effective
immediately, unless
the Division
Director provides
otherwise.
* * * * * * *
------------------------------------------------------------------------
[FR Doc. 04-22235 Filed 10-1-04; 8:45 am]
BILLING CODE 6560-50-P