[Federal Register Volume 71, Number 94 (Tuesday, May 16, 2006)]
[Rules and Regulations]
[Pages 28275-28279]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4514]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW-FRL-8169-5]
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 solid 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 spent carbon 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 7,728 cubic yards per year
of the spent carbon.
DATES: Effective Date: May 16, 2006.
ADDRESSES: The public docket for this final rule is located at the EPA
Region 6, 1445 Ross Avenue, Dallas, Texas 75202, and is available for
viewing in EPA's 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-FY06-Bayer-Spent Carbon]. 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), EPA Region 6, 1445 Ross Avenue,
Dallas, Texas 75202. For technical information concerning this notice,
contact Michelle Peace, EPA 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?
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
Who Submitted Comments on the Proposed Rule?
V. Statutory and Executive Order Reviews
I. Overview Information
A. What Action Is EPA Finalizing?
After evaluating the petition, EPA proposed, on February 14, 2006,
to exclude the waste from the lists of hazardous waste under 40 CFR
261.31 and 261.32 (see 71 FR 7704). EPA is finalizing the decision to
grant Bayer's delisting petition to have its spent carbon 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 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.
[[Page 28276]]
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?
Bayer will dispose of the spent carbon in a Subtitle D landfill.
E. When Is the Final Delisting Exclusion Effective?
This rule is effective May 16, 2006. 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 requirements, 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 a 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 or his delegate 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 September 26, 2003, Bayer petitioned EPA to exclude from the
lists of hazardous waste contained in Sec. 261.32, spent carbon
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 7,728 cubic yards per year of the spent
carbon.
C. How Did Bayer Sample and Analyze the Waste Data in This Petition?
To support its petition, Bayer submitted:
(1) Analytical results of the toxicity characteristic leaching
procedure (TCLP) 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.
IV. Public Comments Received on the Proposed Exclusion
Who Submitted Comments on the Proposed Rule?
There were no comments submitted on the proposed rule.
V. Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review ``
(58 FR 51735, October 4, 1993), this rule is not of general
applicability and therefore is not a regulatory action subject to
review by the Office of Management and Budget (OMB). This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it
applies to a particular facility only. Because this rule is of
particular applicability relating to a particular facility, it is not
subject to the regulatory flexibility provisions of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), or to sections 202, 204, and
205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).
Because this rule will affect only a particular facility, it will not
significantly or uniquely affect small governments, as specified in
section 203 of UMRA. Because this rule will affect only a particular
facility, this final rule does not have federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132, ``Federalism'' (64
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply
to this rule. Similarly, because this rule will affect only a
particular facility, this final rule does not have tribal
[[Page 28277]]
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 today's 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.
Dated: May 3, 2006.
Carl E. Edlund,
P.E., 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--Waste Excluded Under Sec. Sec. 260.20 and
260.22
Table 2.--Waste Excluded From Specific Sources
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Facility Address Waste description
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Bayer Material Science LLC...................... Baytown, TX.................. Spent Carbon (EPA Hazardous
Waste Nos. K027, K104, K111,
and K112) generated at a
maximum rate of 7,728 cubic
yards per calendar year after
May 16, 2006.
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-
butylphthalate-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 and the reports have
been approved by EPA.
(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 must 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.
[[Page 28278]]
(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 can 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
must 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 process
that generates 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.
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 28279]]
(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 a
level higher than the
delisting level allowed by EPA
in granting the petition, then
the facility must report the
data, in writing, to EPA
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 EPA 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, EPA will make a
preliminary determination as
to whether the reported
information requires 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 EPA determines that the
reported information requires
action, EPA will notify the
facility in writing of the
actions it 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 explaining why the
proposed EPA action is not
necessary. The facility shall
have 10 days from the date of
EPA'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), EPA will issue a final
written determination
describing the actions that
are necessary to protect human
health and/or the environment.
Any required action described
in EPA's determination shall
become effective immediately,
unless EPA provides otherwise.
* * * * * * *
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[FR Doc. 06-4514 Filed 5-15-06; 8:45 am]
BILLING CODE 6560-50-P