[Federal Register Volume 71, Number 30 (Tuesday, February 14, 2006)]
[Proposed Rules]
[Pages 7704-7712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1398]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW FRL-8031-5]
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
Material Science LLC (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,
spent carbon, is non-hazardous. The spent carbon from the facility's
waste water treatment plant, before treatment, would be listed under
the hazardous waste codes K027, K104, K111, and K112. Long- and short-
term threats to human health and the environment from the spent carbon
as generated are minimized.
DATES: EPA will accept comments until March 16, 2006. 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 March 1, 2006. The
request must contain the information prescribed in 40 CFR 260.20(d)
(hereinafter all CFR cites refer to 40 CFR unless otherwise stated).
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-FY06-
Bayer-Spent Carbon. You may submit your comments electronically to
Michelle Peace at [email protected]. You may also submit your
comments through http://www.regulations.gov. Follow the on-line
instructions for submitting comments.
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 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?
B. 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 waste 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. Statutory and Executive Order Reviews
I. Overview Information
A. What action is EPA proposing?
EPA is proposing to grant the delisting petition submitted by Bayer
to have its spent carbon (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 spent carbon derived
from the treatment of hazardous waste water listed as K027, K104, K111,
and K112 be delisted. 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
[[Page 7705]]
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 determination, EPA
evaluated the petitioned waste against the listing criteria and factors
cited in Sec. Sec. 261.11(a)(2) and (a)(3). Based on this review, EPA
agrees with the petitioner that the waste is non-hazardous 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 facility is based on the information submitted in
support of this rule, including descriptions of the waste and
analytical data from the Bayer, Baytown, Texas facility.
C. How will Bayer manage the waste if it is delisted?
Bayer will dispose of the spent carbon in a Subtitle D landfill.
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 U.S.C. 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 which 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 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 non-hazardous 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 to determine 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 excluded. See 66 FR 27266 (May 16, 2001).
[[Page 7706]]
III. EPA's Evaluation of the Waste Information and Data
A. What waste did Bayer petition EPA to delist?
Bayer petitioned EPA on September 26, 2003, to exclude from the
lists of hazardous waste contained in Sec. Sec. 261.31 and 261.32, the
spent carbon from its waste water treatment plant. This petition also
included a request to delist the Clarifier Outlet Wastewater. This
waste stream was subsequently removed from the petition. The spent
carbon waste stream is generated from the Bayer facility located in
Baytown, Texas. The spent carbon is listed under EPA Hazardous Waste
Nos. K027, K104, K111, and K112, because it is derived from the
treatment of listed waste water which is treated at the facility's
waste water treatment plant. Specifically, in its petition, Bayer
requested that EPA grant an exclusion for 7,728 cubic yards per
calendar year of spent carbon 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.
Bayer intends to dispose of the delisted spent carbon at a Subtitle
D Landfill. Treatment of the waste waters, which result from the
manufacturing process generates the spent carbon that is classified as
K027, K104, K111, and K112 listed hazardous wastes pursuant to 40 CFR
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) Analytical results of the toxicity characteristic leaching
procedure and total constituent analysis for volatile and semivolatile
organics, pesticides, herbicides, dioxins/furans, PCBs and metals for
six spent carbon samples;
(2) Analytical results from multiple pH leaching of metals; and
(3) Descriptions of the waste water treatment process and carbon
regeneration process.
D. What were the results of Bayer's analysis?
EPA believes that the descriptions of Bayer's waste, and the
analytical data submitted in support of the petition show that the
spent carbon is non-hazardous. Analytical data from Bayer's spent
carbon 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
that they satisfy EPA's criteria for collecting representative samples
of the variations in constituent concentrations in the spent carbon.
The data submitted in support of the petition show that constituents in
Bayer's wastes are presently below health-based risk levels used in the
delisting decision-making. EPA believes that Bayer has successfully
demonstrated that the spent carbon is non-hazardous.
Table 1.--Maximum TCLP and Total Constituent Concentrations of the Spent Carbon and Corresponding Delisting
Limits \1\
----------------------------------------------------------------------------------------------------------------
Waste stream total Waste stream TCLP Delisting
Chemical name concentration (mg/kg) concentration (mg/l) concentration (mg/kg)
----------------------------------------------------------------------------------------------------------------
Acetophenone....................... 3.0E-04 1.60E+00 8.71E+01
Aniline............................ 2.56E-03 1.20E-01 2.82E+00
Antimony........................... 7.10E-03 1.90E-02 2.51E-01
Arsenic............................ 8.20E-03 1.72E-02 3.85E-01
Aldrin............................. 8.50E-03 <2.00E-05 4.82E-05
Barium............................. 4.42E+01 2.43E-01 8.93E+00
Benzene............................ 5.00E-03 <5.00E-02 5.54E-01
Benzyl Alcohol..................... 2.4E-01 <4.00E-04 2.61E+02
Beryllium.......................... 1.0E+00 5.00E-02 9.53E-01
Bis(2-ethylhexyl)phthalate......... 7.90E-02 <2.00E-04 3.42E-01
Butylbenzylphthalate............... 2.50E-02 1.25E-03 3.54E+00
Cadmium............................ <4.50E-04 <2.30E-01 6.87E-01
Chloroform......................... 2.00E-02 <5.00E-02 2.97E-01
Chromium........................... 1.50E+01 2.30E-03 5.00E+00
Cobalt............................. 4.10E+00 2.05E-01 2.75E+00
Copper............................. 6.58E+01 3.29E+00 1.28E+02
Cyanide............................ 4.33E+01 4.18E-003 1.65E+00
Di-n-butyl phthalate............... 5.60E-02 2.00E-03 2.02E+00
Di-n-octyl phthalate............... 3.70E-02 <1.5E-04 4.27E-03
[[Page 7707]]
Dinitrotoluene, 2,4-............... 1.20E+00 <1.5 E-04 2.49E-02
Dioxane, 1,4-...................... 1.60E+00 <4.6E+00 1.46E+01
Dinitrotoluene, 2,6-............... 1.70E+00 <1.0E-04 2.49E-02
Diphenylamine...................... 1.00E-01 <1.50E-04 1.43E+00
Kepone............................. <4.15E-01 <2.20E-04 3.73E-04
Lead............................... 4.10E-01 2.60E-03 5.0E+00
Mercury............................ <3.4E+00 <2.60E-02 2.94E-02
2-Nitrophenol...................... 3.40E+00 <1.50E-04 8.79E+01
N-Nitrodiphenylamine............... <1.0E-04 2.30E-01 3.28E+00
Nickel............................. 1.70E+02 3.18E-01 3.45E+00
Phenol............................. 4.10E-02 <1.00E-04 5.22E+01
Selenium........................... 1.20E+00 1.76E-02 2.66E-01
Tin................................ 1.90E+00 9.50E-02 2.75E+01
Toluene diisocyanate............... <1.0 E-02 <1.0E-02 1.0E-02
2,4 toluenediamine................. <2.0 E-02 <4.0E-03 5.02E-03
Vanadium........................... 1.17E+01 5.85E-01 2.58E+00
Zinc............................... 8.64E+01 4.32E+00 3.42E+01
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\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.
E. How did EPA evaluate the risk of delisting this waste?
The worst case scenario for management of the spent carbon was
modeled for disposal in a landfill. EPA used such information gathered
to identify plausible exposure routes (i.e., ground water, surface
water, soil, air) for hazardous constituents present in the spent
carbon. EPA determined that disposal in a Subtitle D landfill is the
most reasonable, worst-case disposal scenario for Bayer's spent carbon.
EPA applied the DRAS described in 65 FR 58015 (September 27, 2000) and
65 FR 75637 (December 4, 2000), to predict the maximum allowable
concentrations of hazardous constituents that may be released from the
petitioned waste after disposal and determined the potential impact of
the disposal of Bayer's petitioned waste on human health and the
environment. In assessing potential risks to ground water, EPA used the
maximum estimated waste volumes and the maximum reported extract
concentrations as inputs to the DRAS program to estimate the
constituent concentrations in the ground water at a hypothetical
receptor well down gradient from the disposal site. Using the risk
level (carcinogenic risk of 10-5 and non-cancer hazard index
of 0.1), the DRAS program can back-calculate the acceptable receptor
well concentrations (referred to as compliance-point concentrations)
using standard risk assessment algorithms and Agency health-based
numbers. Using the maximum compliance-point concentrations and EPA
Composite Model for Leachate Migration with Transformation Products
(EPACMTP) fate and transport modeling factors, the DRAS further back-
calculates the maximum permissible waste constituent concentrations not
expected to exceed the compliance-point concentrations in ground water.
EPA believes that the EPACMTP fate and transport model represents a
reasonable worst-case scenario for possible ground water contamination
resulting from disposal of the petitioned waste in a landfill, and that
a reasonable worst-case scenario is appropriate when evaluating whether
a waste should be relieved of the protective management constraints of
RCRA Subtitle C. The use of some reasonable worst-case scenarios
resulted in conservative values for the compliance-point concentrations
and ensured that the waste, once removed from hazardous waste
regulation, will not pose a significant threat to human health and/or
the environment. The DRAS also uses the maximum estimated waste volumes
and the maximum reported total concentrations to predict possible risks
associated with releases of waste constituents through surface pathways
(e.g., volatilization or wind-blown particulate from the landfill). As
in the above ground water analyses, the DRAS uses the risk level, the
health-based data and standard risk assessment and exposure algorithms
to predict maximum compliance-point concentrations of waste
constituents at a hypothetical point of exposure. Using fate and
transport equations, the DRAS uses the maximum compliance-point
concentrations and back-calculates the maximum allowable waste
constituent concentrations (or ``delisting levels'').
In most cases, because a delisted waste is no longer subject to
hazardous waste control, EPA is generally unable to predict, and does
not presently control, how a petitioner will manage a waste after
delisting. Therefore, EPA currently believes that it is inappropriate
to consider extensive site-specific factors when applying the fate and
transport model. EPA does control the type of unit where the waste is
disposed.
EPA also considers the applicability of ground water monitoring
data during the evaluation of delisting petitions. In this case, Bayer
has never directly disposed of this material in a solid waste landfill,
so no representative data exists. Therefore, EPA has determined that it
would be unnecessary to request ground water monitoring data.
EPA believes that the descriptions of Bayer's spent carbon and
analytical characterization which illustrate the presence of toxic
constituents at lower concentrations in these waste streams provide a
reasonable basis to conclude that the likelihood of migration of
hazardous constituents from the petitioned waste will be substantially
reduced so that short-term and long-term threats to human health and
the environment are minimized.
The DRAS results, which calculated the maximum allowable
concentration of chemical constituents in the spent carbon are
presented in Table 1. Based
[[Page 7708]]
on the comparison of the DRAS results and maximum TCLP concentrations
found in Table 1, the petitioned waste should be delisted because no
constituents of concern are likely to be present or formed as reaction
products or by products in Bayer's waste.
F. What sid EPA conclude about Bayer's analysis?
EPA concluded, after reviewing Bayer's processes that no other
hazardous constituents of concern, other than those for which Bayer
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 petitioned waste, spent carbon, 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, in addition to the
potential impacts to the ground water, EPA also considered the
potential impact of the petitioned waste via non-ground water exposure
routes (i.e., air emissions and surface runoff) for the spent carbon.
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 spent carbon
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
landfill. 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 spent
carbon.
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 action), provide a reasonable
basis for EPA to grant the petition. 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 spent
carbon generated by Bayer contains hazardous constituents at levels
which will present minimal short-term and long-term threats from the
petitioned waste to human health and the environment.
Thus, EPA believes that it should grant to Bayer an exclusion from
the list of hazardous wastes for the spent carbon. EPA believes that
the data submitted in support of the petition show the Bayer's spent
carbon to be non-hazardous.
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 spent carbon. 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 spent carbon is non-
hazardous.
EPA, therefore, proposes to grant an exclusion to Bayer for the
spent carbon described in its September 2003 petition. EPA's decision
to exclude this waste is based on analysis performed on samples taken
of the spent carbon.
If EPA finalizes the proposed rule, EPA will no longer regulate
7,728 cubic yards/year of spent carbon from Bayer's Baytown facility
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 action. The text
below gives the rationale and details of those requirements.
(1) Delisting Levels
This paragraph provides the levels of constituent concentrations
for which Bayer must test in the spent carbon, below which these wastes
would be considered non-hazardous.
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 leachable concentrations of the spent carbon.
(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 can
begin in March. If constituent levels in any sample taken by Bayer
exceed any of the delisting levels set in paragraph (1), Bayer must:
(i) notify EPA in accordance with paragraph (6), and; (ii) manage and
dispose of the spent carbon as hazardous waste generated under Subtitle
C of RCRA.
(3) Verification Testing Requirements
Bayer must complete a verification testing program on the spent
carbon to assure that the wastes do 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 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 spent carbon for specified indicator
parameters as described in paragraph (1). Each quarterly sampling event
will consist of at least two samples of the spent carbon. Levels of
constituents measured in the samples of the spent carbon that do not
exceed the levels set forth in paragraph (1) can be considered non-
hazardous 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 the spent carbon 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 wastes does
not meet the delisting levels in paragraph (1), Bayer must notify EPA
according to
[[Page 7709]]
the requirements in paragraph (6). EPA will then take the appropriate
actions necessary to protect human health and the environment as
described in 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 spent carbon 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
correctly managing the spent carbon, Bayer must compile, summarize, and
keep delisting records on-site for a minimum of five years. It should
keep all analytical data obtained pursuant to 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
7,728 cubic yards per calendar year of spent carbon 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 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. EPA will
publish an amendment to the exclusion if the changes are acceptable.
Bayer must manage waste volumes greater than 7,728 cubic yards of
spent carbon as hazardous waste until EPA grants a revised exclusion.
When this exclusion becomes final, the management by Bayer of the spent
carbon 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. 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 delisting is
merited in light of EPA's experience. See the Federal Register notice
regarding 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, 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 on a case-by-case basis.
Where necessary, EPA will make a good cause finding to justify
emergency rulemaking. See APA section 553 (b)(3)(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-TXDEL-FY06-Bayer-Spent Carbon. 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
[[Page 7710]]
fifteen cents per page for additional copies.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this rule is not of general applicability
and therefore is not a regulatory action subject to review by the
Office of Management and Budget (OMB). This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a
particular facility only. Because this rule is of particular
applicability relating to a particular facility, it is not subject to
the regulatory flexibility provisions of the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because
this rule will affect only a particular facility, it will not
significantly or uniquely affect small governments, as specified in
section 203 of UMRA. Because this rule will affect only a particular
facility, this proposed rule does not have federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132, ``Federalism,'' (64
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply
to this rule. Similarly, because this rule will affect only a
particular facility, this proposed rule does not have tribal
implications, as specified in Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments'' (65 FR 67249, November 9,
2000). Thus, Executive Order 13175 does not apply to this rule. This
rule also is not subject to Executive Order 13045, ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant as
defined in Executive Order 12866, and because the Agency does not have
reason to believe the environmental health or safety risks addressed by
this action present a disproportionate risk to children. The basis for
this belief is that the Agency used the DRAS program, which considers
health and safety risks to infants and children, to calculate the
maximum allowable concentrations for this rule. This rule is not
subject to Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866. This rule does not involve technical
standards; thus, the requirements of section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do
not apply. As required by section 3 of Executive Order 12988, ``Civil
Justice Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule,
EPA has taken the necessary steps to eliminate drafting errors and
ambiguity, minimize potential litigation, and provide a clear legal
standard for affected conduct. The Congressional Review Act, 5 U.S.C.
801 et seq., as added by the Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides that before a rule may take
effect, the agency promulgating the rule must submit a rule report
which includes a copy of the rule to each House of the Congress and to
the Comptroller General of the United States. Section 804 exempts from
section 801 the following types of rules (1) Rules of particular
applicability; (2) rules relating to agency management or personnel;
and (3) rules of agency organization, procedure, or practice that do
not substantially affect the rights or obligations of non-agency
parties 5 U.S.C. 804(3). EPA is not required to submit a rule report
regarding 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: February 3, 2006.
William Rhea,
Acting Director, Multimedia Planning and Permitting Division.
For the reasons set out in the preamble, 40 CFR part 261 is
proposed to be amended as follows:
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 Material Science....................... Baytown, TX..................... Spent Carbon (EPA Hazardous
Waste Numbers K027, K104,
K111, and K112) generated at a
maximum rate of 7,728 cubic
yards per calendar year after
[publication date of the final
rule].
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/l
specified in this paragraph.
Spent Carbon Leachable
Concentrations (mg/l):
Antimony-0.251; Arsenic-0.385,
Barium-8.93; Beryllium-0.953;
Cadmium-0.687; Chromium-5.0;
Cobalt-2.75; Copper-128.0;
Cyanide-1.65; Lead-5.0;
Mercury-0.0294; Nickel-3.45;
Selenium-0.266 ; Tin-2.75;
Vanadium-2.58; Zinc-34.2;
Aldrin-0.0000482; Acetophenone-
87.1; Aniline-2.82; Benzene--
0.554; Bis(2-
ethylhexyl)phthalate-0.342;
Benzyl alcohol-261;
Butylbenzylphthalate-3.54;
Chloroform-0.297; Di-n-octyl
phthalate-0.00427; 2,4-
Dinitrotoluene-0.0249; 2,6-
Dinitrotoluene-0.0249
Diphenylamine-1.43; 1,4-
Dioxane-14.6; Di-n-butyl
phthalate-2.02; Kepone-
0.000373; 2-Nitrophenol-87.9;
N-Nitrodiphenylamine-3.28;
Phenol-52.2; 2,4-
Toluenediamine-0.00502;
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 spent
carbon has occurred for two
consecutive quarterly sampling
events.
[[Page 7711]]
(B) If constituent levels in
any sample taken by Bayer
exceed any of the delisting
levels set in paragraph (1)
for the spent carbon, Bayer
must do the following:
(i) Notify EPA in accordance
with paragraph (6) and
(ii) Manage and dispose the
spent carbon as hazardous
waste generated under Subtitle
C of RCRA.
(3) Testing Requirements:
Upon this exclusion becoming
final, Bayer may perform
quarterly analytical testing
by sampling and analyzing the
spent carbon as follows:
(A) Quarterly Testing:
(i) Collect two representative
composite samples of the spent
carbon 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 spent
carbon must be disposed as
hazardous waste in accordance
with the applicable hazardous
waste requirements.
(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
spent carbon do not exceed the
levels set forth in paragraph
(1) of this exclusion for two
consecutive quarters, Bayer
can manage and dispose the non-
hazardous spent carbon
according to all applicable
solid waste regulations.
(B) Annual Testing:
(i) If Bayer completes the
quarterly testing specified in
paragraph (3) above and no
sample contains a constituent
at 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 spent
carbon 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 samples of
the Bayer spent carbon are
representative 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.
(iv) The annual testing report
should include the total
amount of waste in cubic yards
disposed during the calendar
year.
(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 (by
illustration, but not
limitation, changes in
equipment or operating
conditions of the treatment
process), it must notify EPA
in writing and it may no
longer handle the wastes
generated from the new process
as non-hazardous 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 requests 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. 1001 and
42 U.S.C. 6928), I certify
that the information contained
in or accompanying this
document is true, accurate and
complete.
[[Page 7712]]
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
(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.
* * * * * * *
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[FR Doc. 06-1398 Filed 2-13-06; 8:45 am]
BILLING CODE 6560-50-P