[Federal Register Volume 70, Number 141 (Monday, July 25, 2005)]
[Rules and Regulations]
[Pages 42499-42505]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14535]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-7940-3]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Final Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: Environmental Protection Agency (EPA) is granting a petition
submitted by Bayer Material Science LLC (Bayer) to exclude (or delist)
a certain liquid waste generated by its Baytown, TX plant from the
lists of hazardous wastes. This final rule responds to the petition
submitted by Bayer to delist K027, K104, K111, and K112 treated
effluent generated from the facility's waste water treatment plant.
After careful analysis and use of the Delisting Risk Assessment
Software (DRAS) EPA has concluded the petitioned waste is not hazardous
waste. This exclusion applies to 18,071,150 cubic yards (5.745 billion
gallons) per year of the Outfall 007 Treated Effluent. Accordingly,
this final rule excludes the petitioned waste from the requirements of
hazardous waste regulations under the Resource Conservation and
Recovery Act (RCRA) when discharged in accordance with the facility's
TPDES permit.
EFFECTIVE DATE: July 25, 2005.
ADDRESSES: The public docket for this final rule is located at the
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas,
Texas 75202, and is available for viewing in EPA Freedom of Information
Act review room on the 7th floor from 9 a.m. to 4 p.m., Monday through
Friday, excluding Federal holidays. Call (214) 665-6444 for
appointments. The reference number for this docket is [R6-TXDEL-FY04-
BAYER]. The public may copy material from any regulatory docket at no
cost for the first 100 pages and at a cost of $0.15 per page for
additional copies.
FOR FURTHER INFORMATION CONTACT: Ben Banipal, Section Chief of the
Corrective Action and Waste Minimization Section, Multimedia Planning
and Permitting Division (6PD-C), Environmental Protection Agency Region
6, 1445 Ross Avenue, Dallas, Texas 75202.
For technical information concerning this document, contact
Michelle Peace, Environmental Protection Agency Region 6, 1445 Ross
Avenue, (6PD-C), Dallas, Texas 75202, at (214) 665-7430, or
[email protected].
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What Action Is EPA Finalizing?
B. Why Is EPA Approving This Action?
C. What Are the Limits of This Exclusion?
D. How Will Bayer Manage the Waste if It Is Delisted?
E. When Is the Final Delisting Exclusion Effective?
F. How Does This Final Rule Affect States?
II. Background
A. What Is a Delisting Petition?
B. What Regulations Allow Facilities to Delist a Waste?
C. What Information Must the Generator Supply?
III. EPA's Evaluation of the Waste Information and Data
A. What Waste Did Bayer Petition EPA To Delist?
B. How Much Waste Did Bayer Propose To Delist?
C. How Did Bayer Sample and Analyze the Waste Data in This
Petition?
IV. Public Comments Received on the Proposed Exclusion
A. Who Submitted Comments on the Proposed Rule?
B. What Were the Comments and What Are EPA's Responses to Them?
V. Regulatory Impact
VI. Regulatory Flexibility Act
VII. Paperwork Reduction Act
VIII. Unfunded Mandates Reform Act
IX. Executive Order 13045
X. Executive Order 13084
XI. National Technology Transfer and Advancement Act
XII. Executive Order 13132 Federalism
XIII. Executive Order 13211
XIV. Executive Order 12988
XV. Congressional Review Act
I. Overview Information
A. What Action Is EPA Finalizing?
After evaluating the petition, EPA proposed, on October 4, 2004 to
exclude the waste from the lists of hazardous waste under 40 CFR 261.31
and 261.32 (see 69 FR 59156). EPA is finalizing the decision to grant
Bayer's delisting petition to have its Outfall 007 Treated Effluent
generated from treating waste waters at the plant subject to certain
continued verification and monitoring conditions.
B. Why Is EPA Approving This Action?
Bayer's petition requests a delisting from the K027, K104, K111,
and K112, waste listings under 40 CFR 260.20 and 260.22. 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. See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR
260.22 (d)(1)-(4) (hereinafter all sectional references are to 40 CFR
unless otherwise indicated). In making the final delisting
determination, EPA evaluated the petitioned waste against the listing
criteria and factors cited in Sec. 261.11(a)(2) and (a)(3). Based on
this review, EPA agrees with the petitioner that the waste is
nonhazardous with respect to the original listing criteria. If EPA had
found, based on this review, that the waste remained hazardous based on
the factors for which the waste
[[Page 42500]]
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 final decision to delist
waste from Bayer's facility is based on the information submitted in
support of this rule, including descriptions of the wastes and
analytical data from the Baytown, TX facility.
C. What Are the Limits of This Exclusion?
This exclusion applies to the waste described in the petition only
if the requirements described in 40 CFR part 261, appendix IX, table 2
and the conditions contained herein are satisfied.
D. How Will Bayer Manage the Waste if It Is Delisted?
The treated effluent will continue to be piped and discharged from
Bayer's TPDES-permitted Outfall 007 after the delisting is effective.
The waste is delisted from its exit from the outfall tank to its point
of discharge.
E. When Is the Final Delisting Exclusion Effective?
This rule is effective July 25, 2005. The Hazardous and Solid Waste
Amendments of 1984 amended Section 3010 of RCRA, 42 U.S.C. 6930(b)(1),
allows rules to become effective less than six months after the rule is
published when the regulated community does not need the six-month
period to come into compliance. That is the case here because this rule
reduces, rather than increases, the existing requirements for persons
generating hazardous waste. This reduction in existing requirements
also provides a basis for making this rule effective immediately, upon
publication, under the Administrative Procedure Act, pursuant to 5
U.S.C. 553(d).
F. How Does This Final Rule Affect States?
Because EPA is issuing this exclusion under the Federal RCRA
delisting program, only states subject to Federal RCRA delisting
provisions would be affected. This would exclude states which have
received authorization from EPA to make their own delisting decisions.
EPA allows states to impose their own non-RCRA regulatory
requirements that are more stringent than EPA's, under section 3009 of
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a
provision that prohibits a Federally issued exclusion from taking
effect in the state. Because a dual system (that is, both Federal
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's
waste, EPA urges petitioners to contact the State regulatory authority
to establish the status of their wastes under the State law.
EPA has also authorized some states (for example, Louisiana,
Oklahoma, Georgia, and Illinois) to administer an RCRA delisting
program in place of the Federal program; that is, to make state
delisting decisions. Therefore, this exclusion does not apply in those
authorized states unless that state makes the rule part of its
authorized program. If Bayer transports the petitioned waste to or
manages the waste in any state with delisting authorization, Bayer must
obtain delisting authorization from that state before it can manage the
waste as nonhazardous in the state.
II. Background
A. What Is a Delisting Petition?
A delisting petition is a request from a generator to EPA, or
another agency with jurisdiction, to exclude or delist from the RCRA
list of hazardous waste, certain wastes the generator believes should
not be considered hazardous under RCRA.
B. What Regulations Allow Facilities To Delist a Waste?
Under Sec. Sec. 260.20 and 260.22, facilities may petition EPA to
remove their wastes from hazardous waste regulation by excluding them
from the lists of hazardous wastes contained in Sec. Sec. 261.31 and
261.32. Specifically, Sec. 260.20 allows any person to petition the
Administrator to modify or revoke any provision of 40 CFR parts 260
through 265 and 268. Section 260.22 provides generators the opportunity
to petition the Administrator to exclude a waste from a particular
generating facility from the hazardous waste lists.
C. What Information Must the Generator Supply?
Petitioners must provide sufficient information to EPA to allow EPA
to determine that the waste to be excluded does not meet any of the
criteria under which the waste was listed as a hazardous waste. In
addition, the Administrator must determine, where he/she has a
reasonable basis to believe that factors (including additional
constituents) other than those for which the waste was listed could
cause the waste to be a hazardous waste and that such factors do not
warrant retaining the waste as a hazardous waste.
III. EPA's Evaluation of the Waste Information and Data
A. What Waste Did Bayer Petition EPA To Delist?
On June 25, 2003, Bayer petitioned EPA to exclude from the lists of
hazardous waste contained in Sec. 261.32, Outfall 007 Treated Effluent
generated from its facility located in Baytown, Texas. The waste falls
under the classification of a listed waste under Sec. 261.30.
B. How Much Waste Did Bayer Propose To Delist?
Specifically, in its petition, Bayer requested that EPA grant a
conditional exclusion for 18,071,150 cubic yards (5.745 billion
gallons) per year of the treated effluent.
C. How Did Bayer Sample and Analyze the Waste Data in 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; and
(2) Descriptions of the waste water treatment process and effluent.
IV. Public Comments Received on the Proposed Exclusion
A. Who Submitted Comments on the Proposed Rule?
Comments were submitted by the Texas Commission on Environmental
Quality (TCEQ) to correct information contained in the proposed rule.
B. What Were the Comments and What Are EPA's Responses to Them?
TCEQ noted that the name of the facility has been changed from
Bayer Polymers LLC to Bayer Material Science LLC. EPA has noted this
name change and made appropriate changes to the final rule and
exclusion language to reflect this change.
TCEQ also noted that the carbon regeneration unit referred to in
the proposed rule has been certified closed. EPA has verified that the
carbon regeneration has been closed. EPA's
[[Page 42501]]
mention of the unit in the proposed rule description was based on the
information provided in the 2003 petition.
TCEQ has recommended that the exclusion language include language
that minimizes the potential for leaks in the effluent pipe line. The
maintenance and management requirements for the effluent pipe line are
not included in the TPDES permit and TCEQ is concerned that the
delisting exclusion will relax Bayer's maintenance of the effluent pipe
line. EPA will add language to the exclusion which requires Bayer to
perform regular and routine maintenance on the pipe line to prevent and
repair leaks as soon as they are discovered.
In addition, on October 30, 2002, (67 FR 66251), EPA proposed the
Methods Innovation Rule to remove from the regulations unnecessary
requirements other than those considered to be Method Defined
Parameters (MDP). An MDP is a method that, by definition or design, is
the only one capable of measuring the particular property (e.g. Method
1311-TCLP). Therefore, EPA is no longer generally requiring the use of
only SW-846 methods for regulatory applications other than those
involving MDPs. The general purpose of this rule is to allow more
flexibility when conducting RCRA-related sampling and analysis
activities. In this proposal, we retain only those methods considered
to be MDPs in the regulations and incorporate them by reference in 40
CFR 260.11. EPA is changing Bayer's delisting exclusion language found
in paragraph (3) to reflect the generic language placed in all
delisting exclusions as a result of the Methods Innovation Rule (70 FR
34537) which was finalized on June 14, 2005.
V. 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 under
Executive Order 12866 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 final rule, section
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.
VI. 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 final 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.
VII. Paperwork Reduction Act
Information collection and record-keeping requirements associated
with this final rule have been approved by the Office of Management and
Budget (OMB) under the provisions of the Paperwork Reduction Act of
1980 (44 U.S.C. 3501 et seq.) and have been assigned OMB Control Number
2050-0053.
VIII. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA), 2 U.S.C. 1501 et seq., 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 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 final 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.
IX. 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 final rule is not subject
to Executive Order 13045 because this is not an economically
significant regulatory action as defined by Executive Order 12866.
X. 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 OMB, in a
separately identified section of the preamble to the
[[Page 42502]]
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 or 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.
XI. National Technology Transfer and Advancement Act
Under Section 12(d) of the National Technology Transfer and
Advancement Act, 15 U.S.C. 3701 et seq., 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 EPA to 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.
XII. 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'' is 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 final 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 final regulation.
This action does not have federalism implications. 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.
XIII. Executive Order 13211
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution and Use'' (66 FR 28355 (May 22, 2001)), because it is not
a significant regulatory action under Executive Order 12866.
XIV. Executive Order 12988
As required by section 3 of Executive Order 12988, ``Civil Justice
Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule, EPA has
taken the necessary steps to eliminate drafting errors and ambiguity,
minimize potential litigation, and provide a clear legal standard for
affected conduct.
XV. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report which includes a copy of the rule to
each House of the Congress and to the Comptroller General of the United
States. Section 804 exempts from section 801 the following types of
rules: (1) Rules of particular applicability; (2) rules relating to
agency management or personnel; and (3) rules of agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties 5 U.S.C. 804(3). EPA is not required
to submit a rule report regarding this action under section 801 because
this is a rule of particular applicability.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: July 11, 2005.
Bill Luthans,
Acting Director, Multimedia Planning and Permitting Division, Region 6.
0
For the reasons set out in the preamble, 40 CFR part 261 is to be
amended as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
0
1. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
0
2. In table 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--Wastes Excluded Under Sec. Sec. 260.20 and
260.22
* * * * *
Table 2.--Wastes Excluded From Specific Sources
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Facility Address Waste description
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* * * * * * *
Bayer Material Science LLC......................... 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
July 25, 2005 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:
[[Page 42503]]
(1) Delisting Levels: All
concentrations for those
constituents must not
exceed the maximum
allowable concentrations
in mg/kg specified in
this paragraph.
Outfall 007 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--126
0.0;
Bromodichloromethane--0.0
719; 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;
Nitrobenzene--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--0.00121.
Toluene diisocyanate--
0.001.
(2) Waste Holding and
Handling: (A) Waste
classification as non-
hazardous can not begin
until compliance with the
limits set in paragraph
(1) for the treated
effluent has occurred for
two consecutive quarterly
sampling events and those
reports have been
approved by EPA.
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.
(iii) Routine inspection
and regular maintenance
of the effluent pipe line
must occur to prevent
spills and leaks of the
treated effluent prior to
discharge.
(3) Testing Requirements:
Sample collection and
analyses, including
quality control
procedures, must be
performed using
appropriate methods. As
applicable to the method-
defined parameters of
concern, analyses
requiring the use of SW-
846 methods incorporated
by reference in 40 CFR
260.11 must be used
without substitution. As
applicable, the SW-846
methods might include
Methods 0010, 0011, 0020,
0023A, 0030, 0031, 0040,
0050, 0051, 0060, 0061,
1010A, 1020B, 1110A,
1310B, 1311, 1312, 1320,
1330A, 9010C, 9012B,
9040C, 9045D, 9060A,
9070A (uses EPA Method
1664, Rev. A), 9071B, and
9095B. Methods must meet
Performance Based
Measurement System
Criteria in which the
Data Quality Objectives
are to demonstrate that
representative samples of
the Bayer treated
effluent meet the
delisting levels in
paragraph (1).
(A) Quarterly Testing:
Upon this exclusion
becoming final, Bayer may
perform quarterly
analytical testing by
sampling and analyzing
the treated effluent as
follows:
(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 of as hazardous
waste in accordance with
the applicable hazardous
waste requirements in 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.
(B) Annual Testing:
(i) If Bayer completes the
four (4) quarterly
testing events specified
in paragraph (3)(A) 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. As
applicable to the method-
defined parameters of
concern, analyses
requiring the use of SW-
846 methods incorporated
by reference in 40 CFR
260.11 must be used
without substitution. As
applicable, the SW-846
methods might include
Methods 0010, 0011, 0020,
0023A, 0030, 0031, 0040,
0050, 0051, 0060, 0061,
1010A, 1020B, 1110A,
1310B, 1311, 1312, 1320,
1330A, 9010C, 9012B,
9040C, 9045D, 9060A,
9070A (uses EPA Method
1664, Rev. A), 9071B, and
9095B. Methods must meet
Performance Based
Measurement System
Criteria in which the
Data Quality Objectives
are to demonstrate that
representative samples of
the Bayer treated
effluent 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.
[[Page 42504]]
(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:
(i) 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.
(ii) Compile records of
analytical data from
paragraph (3),
summarized, and
maintained on-site for a
minimum of five years.
(iii) Furnish these
records and data when
either EPA or the State
of Texas request them for
inspection.
(iv) Send along with all
data a signed copy of the
following certification
statement, to attest to
the truth and accuracy of
the data submitted:
``Under civil and criminal
penalty of law for the
making or submission of
false or fraudulent
statements or
representations (pursuant
to the applicable
provisions of the Federal
Code, which include, but
may not be limited to, 18
U.S.C. 1001 and 42 U.S.C.
6928), I certify that the
information contained in
or accompanying this
document is true,
accurate and complete.
As to the (those)
identified section(s) of
this document for which I
cannot personally verify
its (their) truth and
accuracy, I certify as
the company official
having supervisory
responsibility for the
persons who, acting under
my direct instructions,
made the verification
that this information is
true, accurate and
complete.
If any of this information
is determined by EPA in
its sole discretion to be
false, inaccurate or
incomplete, and upon
conveyance of this fact
to the company, I
recognize and agree that
this exclusion of waste
will be void as if it
never had effect or to
the extent directed by
EPA and that the company
will be liable for any
actions taken in
contravention of the
company's RCRA and CERCLA
obligations premised upon
the company's reliance on
the void exclusion.''
(6) Reopener:
(i) 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.
(ii) 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.
(iii) If Bayer fails to
submit the information
described in paragraphs
(5), (6)(i) or (6)(ii) 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.
(iv) 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.
(v) Following the receipt
of information from the
facility described in
paragraph (6)(iv) or (if
no information is
presented under paragraph
(6)(iv)) the initial
receipt of information
described in paragraphs
(5), (6)(i) or (6)(ii),
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.
[[Page 42505]]
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[FR Doc. 05-14535 Filed 7-22-05; 8:45 am]
BILLING CODE 6560-50-P