[Federal Register Volume 75, Number 185 (Friday, September 24, 2010)]
[Rules and Regulations]
[Pages 58315-58328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-23965]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R06-RCRA-2009-0312; SW FRL-9206-8]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Direct Final Exclusion
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is proposing to grant a petition submitted by Eastman
Chemical Company-Texas Operations (Eastman) to exclude (or delist)
certain solid wastes generated by its Longview, Texas, facility from
the lists of hazardous wastes. EPA used the Delisting Risk Assessment
Software (DRAS) Version 3.0 in the evaluation of the impact of the
petitioned waste on human health and the environment.
DATES: This rule is effective on November 23, 2010 without further
notice, unless EPA receives relevant adverse comment by October 25,
2010. If adverse comment is received, EPA will publish a timely
withdrawal of this direct final rule in the Federal Register informing
the public that the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
RCRA-2009-0312 by one of the following methods:
1. Federal eRulemaking Portal: http:[sol][sol]www.regulations.gov:
Follow the on-line instructions for submitting comments.
2. E-mail: [email protected].
3. Mail: Michelle Peace, Environmental Protection Agency,
Multimedia Planning and Permitting Division, RCRA Branch, Mail Code:
6PD-C, 1445 Ross Avenue, Dallas, TX 75202.
4. Hand Delivery or Courier. Deliver your comments to: Michelle
Peace, Environmental Protection Agency, Multimedia Planning and
Permitting Division, RCRA Branch, Mail Code: 6PD-C, 1445 Ross Avenue,
Dallas, TX 75202.
Instructions: Direct your comments to Docket ID No. EPA-R06-RCRA-
2009-0312. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http:[sol][sol]www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through
http:[sol][sol]www.regulations.gov or e-mail. The
http:[sol][sol]www.regulations.gov Web site is an ``anonymous access''
system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an e-mail comment directly to EPA without going through
http:[sol][sol]www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the electronic docket are listed in the
http:[sol][sol]www.regulations.gov index. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available either
electronically in http:[sol][sol]www.regulations.gov or in hard copy at
the Environmental Protection Agency, RCRA Branch, 1445 Ross Avenue,
Dallas, TX 75202. The hard copy of the RCRA regulatory docket for this
proposed rule, EPA-R06-RCRA-2009-0312, is available for viewing from 8
a.m. to 5 p.m., Monday through Friday, excluding Federal holidays. 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.
EPA requests that you contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to schedule your inspection. The interested
persons wanting to examine these documents should make an appointment
with the office at least 24 hours in advance.
FOR FURTHER INFORMATION CONTACT: For further technical information
concerning this document or for appointments to view the docket or the
Eastman facility petition, contact Michelle Peace, Environmental
Protection Agency, Multimedia Planning and Permitting Division, RCRA
Branch, Mail Code: 6PD-C, 1445 Ross Avenue, Dallas, TX 75202, by
calling (214) 665-7430 or by e-mail at [email protected].
Your requests for a hearing must reach EPA by October 12, 2010. The
request must contain the information described in 40 CFR 260.20(d)
(hereinafter all sectional references are to 40 CFR unless otherwise
indicated).
SUPPLEMENTARY INFORMATION: Eastman submitted a petition under 40 CFR
260.20 and 260.22(a). Section 260.20 allows any person to petition the
Administrator to modify or revoke any provision of parts 260 through
266, 268 and 273. Section 260.22 (a) specifically provides generators
the opportunity to petition the Administrator to exclude a waste on a
``generator specific'' basis from the hazardous waste lists.
The Agency 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 conditionally exclude the
petitioned waste from the requirements of hazardous waste regulations
under the Resource Conservation and Recovery Act (RCRA).
If finalized, we would conclude the petitioned waste from this
facility is non-hazardous with respect to the original listing criteria
and that the waste process used will substantially reduce the
likelihood of migration of hazardous constituents from this waste. We
would also conclude that the processes minimize short-term and long-
term threats from the petitioned waste to human health and the
environment.
Table of Contents
I. Overview Information
A. What action is EPA approving?
B. Why is EPA approving this delisting?
C. How will Eastman manage the wastes, if it is delisted?
D. When would the delisting exclusion be finalized?
E. How would this action affect states?
II. Background
A. What is the history of the delisting program?
B. What is a delisting petition, and what does it require of a
petitioner?
C. What factors must EPA consider in deciding whether to grant a
delisting petition?
III. EPA's Evaluation of the Waste Information and Data
A. What wastes did Eastman petition EPA to delist?
[[Page 58316]]
B. Who is Eastman and what process do they use to generate the
petitioned wastes?
C. What information did Eastman submit to support this petition?
D. What were the results of Eastman's analysis?
E. How did EPA evaluate the risk of delisting this waste?
F. What did EPA conclude about Eastman'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 Eastman violates the terms and conditions of
this delisting action?
V. Final Action
VI. Statutory and Executive Order Reviews
I. Overview Information
A. What action is EPA approving?
EPA is approving the delisting petition submitted by Eastman to
have three waste streams generated from its rotary kiln incinerator
(RKI) excluded, or delisted, from the definition of a hazardous waste.
These waste streams are the rotary kiln incinerator (RKI) bottom ash,
RKI fly ash, and RKI scrubber water blowdown. The RKI bottom ash and
the RKI fly ash are derived from the management of several F-, K-, and
U-waste codes. These waste codes are F001, F002, F003, F005, F039,
K009, K010, U001, U002, U031, U069, U107, U112, U117, U140, U147, U161,
U213, and U359. The Scrubber water blowdown produced by the RKI's air
pollution control equipment is also derived from the management of
several F-, K-, and U-waste codes as well as certain characteristic
hazardous wastes. These waste codes are D001, D002, D003, D007, D008,
D018, D022, F001, F002, F003, F005, F039, K009, K010, U001, U002, U031,
U069, U107, U112, U117, U140, U147, U161, U213, and U359. The RKI is
authorized to manage a list of additional F-, K-, U-, and P-codes to
cover off-site sources not attributed to the above waste codes. If
these waste codes are not specifically listed in the delisting
exclusion, they are not covered by the exclusion and can not be managed
as non-hazardous, unless and until, the exclusion is modified to
include them.
B. Why is EPA approving this delisting?
Eastman's petition requests a delisting for three waste streams:
The RKI bottom ash, RKI fly ash, and RKI scrubber water blowdown listed
as D001, D002, D003, D007, D008, D018, D022, F001, F002, F003, F005,
F039, K009, K010, U001, U002, U031, U069, U107, U112, U117, U140, U147,
U161, U213, and U359. Eastman does not believe that the petitioned
wastes meet the criteria for which EPA listed them. Eastman also
believes no additional constituents or factors could cause the wastes
to be hazardous. EPA's review of this petition included consideration
of the original listing criteria, and the additional factors required
by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See section
3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4). In
making the initial delisting 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 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 wastes do not meet the listing criteria
and thus should not be a listed waste. EPA's decision to delist the
wastes identified above from the facility is based on the information
submitted in support of this rule, including descriptions of the waste
and analytical data from the Eastman, Longview, Texas facility.
C. How will Eastman manage the waste, if it is delisted?
Eastman will dispose of the fly ash and bottom ash in an onsite
landfill. The scrubber water blowdown will be managed in the waste
water treatment plant (WWTP). The sludge from the WWTP has been
delisted. See Appendix IX to Part 261, Table 1. All management occurs
on-site and will remain the same after the delisting is granted.
D. When would the delisting exclusion be finalized?
RCRA section 3001(f) specifically requires EPA to provide notice
and an opportunity for comment before granting or denying a final
exclusion. Thus, EPA will not grant the exclusion unless and until it
addresses all timely public comments (including those at public
hearings, if any) on this proposal.
RCRA section 3010(b)(1), at 42 USCA 6930(b)(1), allows rules to
become effective in less than six months after EPA addresses public
comments when the regulated facility does not need the six-month period
to come into compliance. That is the case here, because this rule, if
finalized, would reduce the existing requirements for persons
generating hazardous wastes.
EPA believes that this exclusion should be effective immediately
upon final publication because a six-month deadline is not necessary to
achieve the purpose of section 3010(b), and a later effective date
would impose unnecessary hardship and expense on this petitioner. These
reasons also provide good cause for making this rule effective
immediately, upon final publication, under the Administrative Procedure
Act, 5 U.S.C. 553(d).
E. How would this action affect the states?
Because EPA is issuing this exclusion under the Federal RCRA
delisting program, only states subject to Federal RCRA delisting
provisions would be affected. This would exclude states 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 the lists several times and codified them in Sec. Sec. 261.31
and 261.32. EPA lists these wastes as hazardous because: (1) They
[[Page 58317]]
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).
III. EPA's Evaluation of the Waste Information and Data
A. What waste did Eastman petition EPA to delist?
Eastman petitioned EPA on December 1, 2008, to exclude from the
lists of hazardous wastes contained in Sec. Sec. 261.24, 261.31, and
261.32, certain wastes from its rotary kiln incineration system. The
three waste streams included in the petition were: the RKI fly ash, RKI
bottom ash and RKI scrubber water blowdown.
The waste streams are generated from the Eastman facility located
in Longview, Texas. The RKI fly ash and RKI bottom ash are listed under
EPA Hazardous Waste No. F001, F002, F003, F005, F039, K009, K010, U001,
U002, U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359.
The Scrubber water blowdown produced by the RKI's air pollution control
equipment is also derived from the management of several F-, K-, and U-
waste codes as well as certain characteristic hazardous wastes. These
waste codes are D001, D002, D003, D007, D008, D018, D022, F001, F002,
F003, F005, F039, K009, K010, U001, U002, U031, U069, U107, U112, U117,
U140, U147, U161, U213, and U359. Specifically, in its petition,
Eastman requested that EPA grant exclusions for 1,000 cubic yards per
calendar year of RKI fly ash; 750 cubic yards per calendar year of RKI
bottom ash; and 643,000 cubic yards (500,000 million gallons) of RKI
scrubber water blowdown waste resulting from the operations of the
rotary kiln incinerator at its facility.
B. Who is Eastman and what process do they use to generate the
petitioned waste?
Eastman manufactures a variety of chemicals and plastics at its
facility located in Longview, Texas. The Longview, Texas facility
occupies roughly 6,000 acres of land and produces approximately 40
chemical and plastic product lines. While Eastman owns and operates a
majority of individual production plants at the facility, there are
some production plants that are not owned by Eastman but are located on
the facility. Eastman provides utility support to these captured
facilities, such use of the wastewater treatment plant and waste
management in the RKI through service agreements. The production
processes employed by the captured facilities produce products in
conjunction with Eastman. The Eastman-Longview Texas facility also
accepts waste for processing in the RKI from other off-site Eastman
facilities. This facility does not accept wastes from sources outside
the Eastman family. The unit is dedicated to wastes similar to those
generated by Eastman only facilities.
The RKI is a thermal combustion unit owned and operated by Eastman
that is used for the destruction of hazardous and non-hazardous wastes
generated by Eastman Chemicals as well as its captured facilities. The
RKI operates at 1700-2200 [deg]F and is RCRA permitted to manage a
large variety of wastes including wastes generated from other Eastman
divisions. These wastes can have a variety of D-, F-, U-, K-, and P-
codes. In practice, the waste codes managed in the RKI will be
associated with production processes from Eastman Chemicals.
The RKI Bottom and Fly Ashes and Scrubber Water Blowdown are
generated by the RKI as residuals from the waste combustion process.
Bottom ash is generated when large particulate matter drops from the
secondary combustion chamber (SCC) into an ash removal pit situated
directly under the SCC. Bottom ashes are removed from the pit via a
chain driven ash conveyor system and placed in large containers for
subsequent management. They are tested, may have polymers added to them
for stabilization and disposed of in an on-site hazardous waste
landfill. Fly ash is lighter than bottom ash and is associated with
finer particulate matter that leaves the SCC as part of the ``exhaust''
gas. From the SCC, exhaust gases pass through a rapid quench tank and
condenser, which have water layers to capture smaller particulate
matter. Exhaust gas then proceeds through a wet scrubber where more
particulate matter is removed. The ``blowdown'' water streams through
the quench/condenser and scrubber systems are routed to a blowdown tank
(clarifier). In the tank, the combined blowdown stream (fly ash and
water) is phase separated with the scrubber water blowdown then going
to the wastewater system and fly ash slurry going to a rotary filter
for dewatering. It is at this point in the system that scrubber water
blowdown is defined. It is also at this point in the system that
dewatered
[[Page 58318]]
solids from the rotary filter are considered fly ash. The dewatered fly
ash is removed from the filter and placed in large containers for
subsequent management which can consist of testing, addition of
polymers (as needed), and disposal in the on-site hazardous waste
landfill.
Eastman intends to dispose of the delisted RKI bottom ash and RKI
fly ash at a on-site Subtitle D Landfill, and the RKI scrubber water
blowdown will be treated in the Wastewater Treatment Plant. Treatment
of process wastes and wastes from captured facilities generate the RKI
bottom ash, RKI fly ash, and RKI scrubber water blowdown that is
classified as F001, F002, F003, F005, F039, K009, K010, U001, U002,
U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359 listed
hazardous wastes pursuant to 40 CFR 261.31 and 261.32. The 40 CFR Part
261 Appendix VII hazardous constituents which are the basis for listing
can be found in Table 1 and Table 2.
Table 1--EPA Waste Codes for RKI Ashes and the Basis for Listing
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Waste code Basis for listing
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F001................... Tetrachloroethylene, methylene chloride
trichloroethylene, 1,1,1-trichloroethane,
carbon tetrachloride, chlorinated
fluorocarbons.
F002................... Tetrachloroethylene, methylene chloride,
trichloroethylene, 1,1,1-trichloroethane,
1,1,2-trichloroethane, chlorobenzene, 1,1,2-
trichloro-1,2,2-trifluoroethane, ortho-
dichlorobenzene, trichlorofluoromethane.
F003................... N.A., xylene, acetone, ethyl acetate, ethyl
benzene, ethyl ether, methyl isobutyl ketone,
n-butyl alcohol, cyclohexane, methanol.
F005................... Toluene, methyl ethyl ketone, carbon disulfide,
isobutanol, pyridine, 2-ethoxyethanol,
benzene, 2-nitropropane.
F039................... All constituents for which treatment standards
are specified for multi-source leachate
(wastewaters and nonwastewaters) under 40 CFR
268.43, Table CCW.
K009................... Chloroform, formaldehyde, methylene chloride,
methyl chloride, paraldehyde, formic acid.
K010................... Chloroform, formaldehyde, methylene chloride,
methyl chloride, paraldehyde, formic acid,
chloroacetaldehyde.
U001................... Acetaldehyde.
U002................... Acetone.
U028................... Bis (2-ethyl hexyl) phthalate.
U031................... n-Butyl alcohol.
U069................... Dibutyl phthalate.
U088................... Di-ethyl phthalate.
U107................... Di-n-octyl phthalate.
U112................... Ethyl acetate.
U115................... Ethylene oxide.
U117................... Ethane, 1,1'-oxybis-(I).
U122................... Formaldehyde.
U140................... Isobutyl alcohol.
U147................... Maleic anhydride.
U154................... Methanol.
U159................... Methyl ethyl ketone.
U161................... Methyl isobutyl ketone.
U213................... Tetrahydrofuran.
U220................... Toluene.
U226................... 1,1,1-Trichloroethane (methyl chloroform).
U239................... Xylene.
U359................... Ethylene glycol monoethyl ether.
------------------------------------------------------------------------
Table 2--EPA Waste Codes for RKI Ashes and the Basis for Listing
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Waste code Basis for listing
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F001................... Tetrachloroethylene, methylene chloride
trichloroethylene, 1,1,1-trichloroethane,
carbon tetrachloride, chlorinated
fluorocarbons.
F002................... Tetrachloroethylene, methylene chloride,
trichloroethylene, 1,1,1-trichloroethane,
1,1,2-trichloroethane, chlorobenzene, 1,1,2-
trichloro-1,2,2-trifluoroethane, ortho-
dichlorobenzene, trichlorofluoromethane.
F003................... N.A., xylene, acetone, ethyl acetate, ethyl
benzene, ethyl ether, methyl isobutyl ketone,
n-butyl alcohol, cyclohexane, methanol.
F005................... Toluene, methyl ethyl ketone, carbon disulfide,
isobutanol, pyridine, 2-ethoxyethanol,
benzene, 2-nitropropane.
F039................... All constituents for which treatment standards
are specified for multi-source leachate
(wastewaters and nonwastewaters) under 40 CFR
268.43, Table CCW.
K009................... Chloroform, formaldehyde, methylene chloride,
methyl chloride, paraldehyde, formic acid.
K010................... Chloroform, formaldehyde, methylene chloride,
methyl chloride, paraldehyde, formic acid,
chloroacetaldehyde.
U001................... Acetaldehyde.
U002................... Acetone.
U028................... Bis (2-ethyl hexyl) phthalate.
U031................... n-Butyl alcohol.
U069................... Dibutyl phthalate.
U088................... Di-ethyl phthalate.
U107................... Di-n-octyl phthalate.
U112................... Ethyl acetate.
U115................... Ethylene oxide.
U117................... Ethane, 1,1'-oxybis-(I).
U122................... Formaldehyde.
U140................... Isobutyl alcohol.
U147................... Maleic anhydride.
U154................... Methanol.
U159................... Methyl ethyl ketone.
U161................... Methyl isobutyl ketone.
[[Page 58319]]
U213................... Tetrahydrofuran.
U220................... Toluene.
U226................... 1,1,1-Trichloroethane (methyl chloroform).
U239................... Xylene.
U359................... Ethylene glycol monoethyl ether.
D001................... Ignitability.
D002................... Corrosivity.
D003................... Reactivity.
D007................... Chromium.
D008................... Lead.
D018................... Benzene.
D022................... Chloroform.
------------------------------------------------------------------------
C. What information did Eastman submit to support this petition?
To support its petition, Eastman 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
eight samples for the RKI fly ash and RKI bottom ash, and RKI scrubber
water blowdown;
2. Analytical results of the total constituent analysis for
volatile and semivolatile organics, pesticides, herbicides, dioxins/
furans, PCBs and metals for eight samples for the RKI scrubber water
blowdown;
3. Analytical results from multiple pH leaching of metals and;
4. Description of the operations and waste received of the RKI.
D. What were the results of Eastman's analysis?
EPA believes that the descriptions of Eastman's waste, and the
analytical data submitted in support of the petition show that the RKI
bottom ash, RKI fly ash, and RKI scrubber water blowdown are non-
hazardous. Analytical data from Eastman's RKI bottom ash, RKI fly ash,
and RKI scrubber water blowdown samples were used in the Delisting Risk
Assessment Software (DRAS). The data summaries for detected
constituents are presented in Table 3, 4, and 5. EPA has reviewed the
sampling procedures used by Eastman and has determined that they
satisfy EPA's criteria for collecting representative samples of the
variations in constituent concentrations in the RKI bottom ash, RKI fly
ash, and RKI scrubber water blowdown. The data submitted in support of
the petition show that constituents in Eastman's wastes are presently
below health-based risk levels used in the delisting decision-making.
EPA believes that Eastman has successfully demonstrated that the RKI
bottom ash, RKI fly ash, and RKI scrubber water blowdown are non-
hazardous.
Table 3--Analytical Results and Maximum Allowable Delisting Concentrations of the RKI bottom ash\1\
----------------------------------------------------------------------------------------------------------------
Maximum allowable TCLP
Constituent Maximum total (mg/kg) Maximum TCLP (mg/l) delisting level (mg/L)
----------------------------------------------------------------------------------------------------------------
Antimony............................. 16 0.062 0.801
Acetone.............................. 0.194 0.772 33.8
Arsenic.............................. 8.8 0.029 0.126
Acetaldehyde......................... 1.37 <0.0100 5.35
Acenaphthylene....................... 3.5 0.014 31.9
Anthracene........................... 1.6 <0.0100 77.9
Acenaphthene......................... 0.721 0.014 31.9
Barium............................... 370 0.7 100
Benzene.............................. <0.170 0.0048 0.231
Bis(2-ethylhexyl)phthalate........... 0.23 0.017 103.0
Benzo(a) anthracene.................. 0.763 <0.0100 0.211
Benzo(a) pyrene...................... 0.519 <0.0100 79.1
Benzo(b) flouranthene................ 0.343 <0.0100 673
Bromomethane......................... 0.057 <0.0100 0.0526
n-Butyl alcohol...................... 4.5 <0.0100 174
Cadmium.............................. 1.5 0.002 0.274
Chromium............................. 14 0.02 5.0
Cobalt............................... 31 0.023 0.643
Copper............................... 29 0.048 73.8
Chloroform........................... 0.0024 0.0047 0.241
Chrysene............................. 0.545 <0.0100 211
Chloromethane........................ 0.034 <0.0100 18.2
Cyanide.............................. 0.195 0.125 9.25
4,4-DDT.............................. 0.0032 <0.0100 0.0103
Di-n-butyl phthalate................. <0.010 0.005 73.9
Dieldrin............................. 0.0013 <0.0100 2.78
Ethylbenzene......................... 0.0086 0.00855 32.6
Fluorene............................. 2.24 0.031 14.7
Formaldehyde......................... 4.6 0.23 347
Fluoranthrene........................ 1.22 <0.0100 7.39
[[Page 58320]]
Isobutanol........................... 1.9 1.88 521
Lead................................. 7.1 0.016 1.95
Mercury.............................. <0.017 <0.0002 0.2
Methyl Isobutyl ketone............... 0.0035 0.0048 139
2-Methylnaphathalene................. 0.501 0.012 2.18
Methylene Chloride................... 0.072 0.131 0.237
Naphthalene.......................... <0.022 <0.0100 0.0983
Nickel............................... 44,000 52 54.1
Phenanthrene......................... 6.48 0.039 14.7
Pyrene............................... 2.67 <0.0100 13.4
Selenium............................. 15 0.074 1.0
Silver............................... 0.027 <0.0020 5.0
Tetrachlorodibenzo-p-dioxin (TCDD) 0.31E-06 <5.92E-08 7.46 E-06 mg/kg total
2,3,7,8-............................
Thallium............................. 3.7 0.017 0.110
Tin.................................. 3.9 <0.0100 22.5
Toluene.............................. 0.015 0.0066 45.4
Vanadium............................. 7.1 0.11 10.4
Xylenes.............................. 0.049 0.0486 28.7
Zinc................................. 550 8.5 600
----------------------------------------------------------------------------------------------------------------
\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.
Table 4--Analytical Results and Maximum Allowable Delisting Concentrations of the RKI Fly Ash\1\
----------------------------------------------------------------------------------------------------------------
Maximum allowable TCLP
Constituent Maximum total (mg/kg) Maximum TCLP (mg/l) delisting level (mg/L)
----------------------------------------------------------------------------------------------------------------
Antimony............................. 25 0.18 0.433
Acetone.............................. 0.177 0.959 2070
Arsenic.............................. 18 0.045 0.418
Acetaldehyde......................... 255 <0.001 0.6264
Barium............................... 110 1.4 100
Bis(2-ethylhexyl)phthalate........... 0.157 0.006 0.0522
Cadmium.............................. 2.9 0.011 0.362
Chromium............................. 5.9 0.015 5.0
Cobalt............................... 86 0.1 0.852
Copper............................... 100 0.52 97.1
Chloroform........................... 0.002 0.0044 0.319
Chloromethane........................ 0.0285 0.0018 24.1
Cyanide.............................. 0.17 <0.001 0.0154
Delta BHC............................ 0.0031 <0.001 3
1,2-Dichlorobenzene.................. <0.5 0.0027 37
1,3-Dichlorobenzene.................. <0.5 0.0023 37
Formaldehyde......................... 5.44 0.272 461
Lead................................. 12 0.021 2.45
Methanol............................. 12.2 <0.001 0.6743
Methyl isobutanol ketone............. 0.004 0.0048 184
Methylene Chloride................... 0.047 0.137 0.315
Nickel............................... 110,000 47 53.8
Nitrobenzene......................... <0.5 0.011 1.15
Selenium............................. 25 0.082 1.0
Silver............................... 2.4 <0.001 5.0
Thallium............................. 6.7 0.019 0.146
Tin.................................. 7.8 <0.001 22.5
Toluene.............................. 0.002 0.037 60.1
Vanadium............................. 6.2 <0.001 14.36
Zinc................................. 4200 <0.001 11.3
Tetrachlorodibenzo-p-dioxin (TCDD) ....................... 2.8 E-06 mg/kg 8.39 E-05 mg/kg total
2,3,7,8-............................
----------------------------------------------------------------------------------------------------------------
\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.
[[Page 58321]]
Table 5--Analytical Results and Maximum Allowable Delisting
Concentrations of the RKI Scrubber Water Blowdown \1\
------------------------------------------------------------------------
Maximum
Maximum TCLP allowable TCLP
Constituent (mg/l) delisting
level (mg/l)
------------------------------------------------------------------------
Antimony................................ 0.041 0.0568
Arsenic................................. 0.013 0.112
Barium.................................. 0.61 11.6
Bis(2-ethylhexyl)phthalate.............. 0.009 0.0522
Chromium................................ 0.019 10.3
Cobalt.................................. 0.012 0.318
Copper.................................. 0.052 22.1
Chloroform.............................. 0.001 0.0163
Chloromethane........................... 0.0021 1.48
Cyanide................................. 0.0048 0.752
Di-n-butylphthalate..................... 0.001 25.6
Lead.................................... 0.019 2.57
Methanol................................ 0.42 70.6
Nickel.................................. 0.50 5.74
Silver.................................. 0.002 1.71
Thallium................................ 0.011 0.0179
Tin..................................... 0.022 22.5
Vanadium................................ 0.006 4.88
Zinc.................................... 16 77.7
------------------------------------------------------------------------
\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 RKI bottom ash and
RKI fly ash was modeled for disposal in a landfill. The worst case
scenario for management of the RKI scrubber water blowdown was modeled
for disposal in a surface impoundent. EPA used such information
gathered to identify plausible exposure routes (i.e., ground water,
surface water, soil, air) for hazardous constituents present in the RKI
bottom ash, RKI fly ash, and RKI scrubber water blowdown. EPA
determined that disposal in a Subtitle D landfill is the most
reasonable, worst-case disposal scenario for Eastman's RKI bottom ash
and RKI fly ash. EPA determined that disposal in a surface impoundment
is the most reasonable, worst-case disposal scenario for Eastman's RKI
scrubber water blowdown. EPA applied the DRAS described in 65 FR 58015
(September 27, 2000), 65 FR 75637 (December 4, 2000) and 73 FR 28768
(May 19, 2008), to predict the maximum allowable concentrations of
hazardous constituents that may be released from the petitioned wastes
after disposal and determined the potential impact of the disposal of
Eastman's petitioned wastes 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 for the
ashes, and a surface impoundment for the liquid scrubber water
blowdown. 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 also considers the applicability of ground water
monitoring data during the evaluation of delisting petitions. In this
case, the ground water monitoring data was submitted in the previous
petition and these wastes do not appear to be impacting the ground
water of the landfill.
[[Page 58322]]
EPA believes that the descriptions of Eastman's RKI bottom ash, RKI
fly ash, and RKI scrubber water blowdown and analytical
characterizations of these wastes illustrate the presence of toxic
constituents at lower concentrations in these waste streams. Therefore,
it is reasonable 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 RKI bottom ash, RKI fly
ash, and RKI scrubber water blowdown are presented in Tables 3, 4, and
5. Based on the comparison of the DRAS results and maximum TCLP
concentrations found in Tables 3, 4, and 5, the petitioned wastes
should be delisted because no constituents of concern are likely to be
present or formed as reaction products or by products in Eastman's
wastes.
F. What did EPA conclude about Eastman's analysis?
EPA concluded, after reviewing Eastman's processes that no other
hazardous constituents of concern, other than those for which Eastman
tested, are likely to be present or formed as reaction products or by-
products in Eastman's wastes. In addition, on the basis of explanations
and analytical data provided by Eastman, pursuant to Sec. 260.22, EPA
concludes that the petitioned wastes: RKI bottom ash, RKI fly ash, and
RKI scrubber water blowdown do 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 RKI bottom ash,
RKI fly ash, and RKI scrubber water blowdown. 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 RKI bottom ash and, RKI fly ash under any
likely disposal conditions. EPA evaluated the potential hazards
resulting from the unlikely scenario of airborne exposure to hazardous
constituents released from the wastewater 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 RKI bottom
ash and RKI fly ash. The RKI scrubber water blowdown was also evaluated
for releases to the air from an impoundment and no substantial present
or potential hazard was identified.
H. What is EPA's evaluation of this delisting petition?
The descriptions by Eastman of the hazardous waste process and
analytical characterization, with the proposed verification testing
requirements (as discussed later in this notice), provide a reasonable
basis for EPA to grant the petition. The data submitted in support of
the petition show that constituents in the waste are below the maximum
allowable concentrations (See Tables 3, 4, and 5). EPA believes that
the RKI bottom ash, RKI fly ash, and RKI scrubber water blowdown
generated by Eastman contains hazardous constituents at levels which
will present minimal short-term and long-term threats from the
petitioned wastes to human health and the environment.
Thus, EPA believes that it should grant to Eastman an exclusion
from the list of hazardous wastes for the RKI bottom ash, RKI fly ash,
and RKI scrubber water blowdown. EPA believes that the data submitted
in support of the petition show the Eastman's RKI bottom ash, RKI fly
ash, and RKI scrubber water blowdown to be non-hazardous.
EPA has reviewed the sampling procedures used by Eastman and has
determined they satisfy EPA's criteria for collecting representative
samples of variable constituent concentrations in the RKI bottom ash,
RKI fly ash, and RKI scrubber water blowdown. The data submitted in
support of the petition show that constituents in Eastman'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 Eastman has
successfully demonstrated that the RKI bottom ash, RKI fly ash, and RKI
scrubber water blowdown are non-hazardous.
EPA, therefore, proposes to grant an exclusion to Eastman for the
RKI bottom ash, RKI fly ash, and RKI scrubber water blowdown described
in its December 2008 petition. EPA's decision to exclude these wastes
is based on analysis performed on samples taken of the RKI bottom ash,
RKI fly ash, and RKI scrubber water blowdown.
If EPA finalizes the proposed rule, EPA will no longer regulate
1,000 cubic yards/year of RKI bottom ash; 750 cubic yards/year of RKI
fly ash, and 643,000 cubic yards/year (500,000 million gallons) of RKI
scrubber water blowdown from Eastman's Longview 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, Eastman, must comply with the requirements in 40
CFR Part 261, Appendix IX, Tables 1, 2, and 3 as amended by this
notice. The text below gives the rationale and details of those
requirements.
(1) Delisting Levels
This paragraph provides the levels of constituent concentrations
for which Eastman RKI bottom ash, RKI fly ash, and RKI scrubber water
blowdown, 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,
tables 1, 2, or 3 based on information in the petition. EPA compiled
the inorganic and organic constituents list from descriptions of the
manufacturing process used by Eastman, 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 RKI bottom ash
and RKI fly ash, and total concentrations of the RKI scrubber water
blowdown.
(2) Waste Holding and Handling
Waste classification as non-hazardous cannot begin until compliance
with the limits set in paragraph (1) has occurred for four consecutive
quarterly sampling events. For example, if Eastman is issued a final
exclusion in August, the first of four quarterly samples per waste
stream can be collected in September. If EPA deems that the four
representative composite samples of each waste stream meet all the
indicator constituent delisting limits, classification of the waste as
non-hazardous can begin in September of the next year. If constituent
levels in any annual sample (and retest, if applicable) taken by
Eastman exceed any of the delisting levels set in paragraph (1),
Eastman must: (i) notify EPA in accordance with paragraph (6), and;
(ii) manage and dispose of the RKI bottom ash, RKI fly
[[Page 58323]]
ash, and RKI scrubber water blowdown as hazardous waste generated under
Subtitle C of RCRA.
(3) Verification Testing Requirements
Eastman must complete a verification testing program on the RKI
bottom ash, RKI fly ash, and RKI scrubber water blowdown 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 initial part of the verification testing program consists of
testing four composite samples from four consecutive quarters of RKI
bottom ash, RKI fly ash, and RKI scrubber water blowdown for specified
indicator parameters as described in paragraph (1). Levels of
constituents measured in the samples of the RKI bottom ash, RKI fly
ash, and RKI scrubber water blowdown that do not exceed the levels set
forth in paragraph (1) can be considered non-hazardous after all four
sets of sampling data meet the levels listed in paragraph (1).
The second part of the verification testing program is the annual
testing of a representative composite sample of the RKI bottom ash, RKI
fly ash, and RKI scrubber water blowdown for all constituents specified
in paragraph (1). If any delisting levels are not met in an annual test
sample, then a second composite sample shall be collected within 10
days of becoming aware of the failure, and it must be analyzed
expeditiously for the TCLP constituent(s) that exceeded Delisting
Levels.
If the annual testing of the wastes, and the retest, do not meet
the delisting levels in paragraph (1), Eastman must notify EPA
according to the requirements in paragraph (6). EPA will then take the
appropriate actions necessary to protect human health and the
environment as described in paragraph (6). Eastman must provide
sampling results that support the rationale that the delisting
exclusion should not be withdrawn.
The final exclusion is effective upon publication in the Federal
Register but the change in waste classification as ``non-hazardous''
cannot begin until the four quarterly initial verification samples
comply with the levels specified in paragraph (1). The waste
classification as ``non-hazardous'' is also not authorized, if Eastman
fails to perform the testing as specified herein. Should Eastman
conduct the yearly testing as specified herein, then disposal of RKI
bottom ash, RKI fly ash, and RKI scrubber water blowdown as delisted
waste may not occur in the following year(s) until Eastman obtains the
written approval of EPA.
(4) Changes in Operating Conditions
Paragraph (4) would allow Eastman the flexibility of modifying its
processes (for example, changes in equipment or change in operating
conditions) to improve its treatment processes. However, Eastman must
prove the effectiveness of the modified process and request approval
from EPA. Eastman 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 Eastman facility is
correctly managing the RKI bottom ash, RKI fly ash, and RKI scrubber
water blowdown, Eastman must compile, summarize, and keep delisting
records on-site for a minimum of five years. Eastman must keep all
analytical data obtained pursuant to paragraph (3), including quality
control information, for five years. Paragraph (5) requires that
Eastman furnish these data upon request for inspection by any employee
or representative of EPA or the State of Texas.
If the exclusion is made final, then it will apply only to 1,000
cubic yards/year of RKI bottom ash; 750 cubic yards/year of RKI fly
ash, and 643,000 cubic yards/year (500,000 million gallons) of RKI
scrubber water blowdown generated at the Eastman facility after
successful initial verification testing.
EPA would require Eastman to submit additional verification data
under any of the following circumstances:
(a) If Eastman significantly alters the waste treatment system
except as described in paragraph (4).
(b) If Eastman uses any new manufacturing or production
process(es), or significantly changes the current process(es) described
in its petition; or
(c) If Eastman makes any changes that could significantly affect
the composition or type of waste generated.
Eastman 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.
Eastman must manage waste volumes greater than 1,000 cubic yards/
year of RKI bottom ash; 750 cubic yards/year of RKI fly ash and 643,000
cubic yards/year (500,000 million gallons) of RKI scrubber water
blowdown as hazardous waste until EPA grants a revised exclusion. When
this exclusion becomes final, the management by Eastman of the RKI
bottom ash, RKI fly ash, and RKI scrubber water blowdown covered in
this petition would be relieved from Subtitle C jurisdiction. Eastman
may not classify the waste as non-hazardous until the revised exclusion
is finalized.
(6) Reopener
The purpose of paragraph (6) is to require Eastman 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. Eastman
must also use this procedure if the waste sample (and retest, if
applicable) 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 Eastman 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
[[Page 58324]]
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 Eastman violates the terms and conditions?
If Eastman 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 Eastman to conduct the appropriate waste analysis
and comply with the criteria explained above in paragraph (1) of the
exclusion.
V. Final Action
EPA is approving the delisting petition for three waste streams
generated at Eastman Chemical's Longview, Texas facility: (1) The RKI
bottom ash; the RKI fly ash; and the RKI scrubber water blowdown.
EPA is publishing this rule without prior proposal because we view
this as a non-controversial exclusion and anticipate no adverse
comments. However, in the ``Proposed Rules'' section of today's Federal
Register, we are publishing a separate document that will serve as the
proposed rule to approve the petition if relevant adverse comments are
received on this direct final rule. We will not institute a second
comment period on this action. Any parties interested in commenting
must do so at this time. For further information about commenting on
this rule, see the ADDRESSES section of this document.
If EPA receives adverse comment, we will publish a timely
withdrawal in the Federal Register informing the public that the rule
will not take effect. We would address all public comments in a
subsequent final rule based on the proposed rule. Please note that if
we receive adverse comment on a paragraph, or section of this rule and
if that provision may be severed from the remainder of the rule, we may
adopt as final those provisions of the rule that are not the subject of
an adverse comment.
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.
Lists of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f)
Dated: September 8, 2010.
Bill Luthans,
Acting Director, Multimedia Planning and Permitting Division.
0
For the reasons set out in the preamble, 40 CFR part 261 is 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 Tables 1, 2 and 3 of Appendix IX to 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.
[[Page 58325]]
Table 1--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Eastman Chemical Company-- Longview, TX................ RKI bottom ash (EPA Hazardous Waste Numbers F001,
Texas Operations. F002, F003, F005, F039, K009, K010, U001, U002,
U031, U069, U107, U112, U117, U140, U147, U161,
U213, and U359.) generated at a maximum rate of
1,000 cubic yards per calendar year after September
24, 2010 and disposed in Subtitle D Landfill.
RKI fly ash EPA Hazardous Waste Number F001, F002,
F003, F005, F039, K009, K010, U001, U002, U031,
U069, U107, U112, U117, U140, U147, U161, U213, and
U359 generated at a maximum rate of 750 cubic yards
per calendar year after September 24, 2010 and
disposed in Subtitle D Landfill.
RKI scrubber water blowdown (EPA Hazardous Waste
Numbers D001, D002, D003, D007, D008, D018, D022,
F001, F002, F003, F005, F039, K009, K010, U001,
U002, U031, U069, U107, U112, U117, U140, U147,
U161, U213, and U359 generated at a maximum rate of
643,000 cubic yards (500,000 million gallons) per
calendar year after September 24, 2010 and treated
and discharged from a Wastewater Treatment Plant.
For the exclusion to be valid, Eastman must
implement a verification testing program for each
of the waste streams 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.
(A) RKI Bottom Ash. Leachable Concentrations (mg/l):
Antimony--0.801; Acetone--33.8; Arsenic--0.126;
Acetaldehyde--5.35; Acenaphthylene--31.9;
Anthracene--77.9; Acenaphthene--31.9; Barium--100;
Benzene--0.231; Bis(2-ethylhexyl)phthalate--103;
Benzo (a) anthracene--0.211; Benzo (a) pyrene--
79.1; Benzo (b) flouranthene--673; Bromomethane--
0.0526; n-Butyl Alcohol--174; Cadmium--0.274;
Chromium--5.0; Cobalt--0.643; Copper--73.8;
Chloroform--0.241; Chrysene--211; chloromethane--
18.2; Cyanide--9.25; 4,4-DDT--0.0103; Di-n-butyl
phthalate--73.9; Dieldrin--2.78; Ethylbenzene--
32.6; Fluorene--14.7; Formaldehyde-347;
Fluoranthrene--7.39; Isobutanol--521; Lead--1.95;
Mercury--0.2; Methy Isobutyl ketone--139; 2-
Methylnaphathalene--2.18; Methylene Chloride--
0.237; Naphthalene--0.0983; Nickel--54.1;
Phenanthrene--14.7; Pyrene--13.4; Selenium--1.0;
Silver--5.0; Thallium--0.110; Tin--22.5; Toluene--
45.4; Vanadium--10.4; Xylene--28.7; Zinc--600.
Total Concentrations (mg/kg)
Tetrachlorodibenzo-p-dioxin (TCDD) 2,3,7,8-7.46 E-06
mg/kg.
(B) RKI Fly Ash. Leachable Concentrations (mg/l):
Antimony--0.111; Acetone--533; Arsenic--0.178;
Barium--36.9; Bis(2-ethylhexyl)phthalate--6.15;
Chromium--2.32; Copper--26.5; Ethylbenzene--11.1;
Methylene Chloride--0.0809; Naphthalene--0.0355;
Nickel--13.8; Phenanthrene--2.72; Toluene--15.5;
Trichloroethane--11900; Trichloroethylene--0.0794;
Vanadium--1.00; Zinc--202.
Total Concentrations (mg/kg)
Tetrachlorodibenzo-p-dioxin (TCDD) 2,3,7,8-4.30 E-05
mg/kg.
(C) RKI Scrubber Water Blowdown. TCLP Concentrations
(mg/l): Antimony--0.0568; Arsenic--0.112; Barium--
11.6; Bis(2-ethylhexyl)phthalate--0.0522; Chromium--
5.0; Cobalt--0.318, Copper--22.1; Chloroform--
0.0163, Chloromethane--1.48; Cyanide--0.752; Di-n-
butylphthalate--25.6; Lead--2.57; Methanol--70.6;
Nickel--5.74; Silver--1.71; Thallium--0.0179; Tin--
22.5; Vanadium--4.88; Zinc--77.7;
(2) Waste Holding and Handling:
(A) Waste classification as non-hazardous cannot
begin until compliance with the limits set in
paragraph (1) for RKI bottom ash, RKI fly ash, and
RKI scrubber water blowdown has occurred for four
consecutive quarterly sampling events.
(B) If constituent levels in any annual sample and
retest sample taken by Eastman exceed any of the
delisting levels set in paragraph (1) for the RKI
bottom ash, RKI fly ash, and RKI scrubber water
blowdown, Eastman must do the following:
(i) notify EPA in accordance with paragraph (6) and
(ii) manage and dispose the RKI bottom ash, RKI fly
ash, and RKI scrubber water blowdown as hazardous
waste generated under Subtitle C of RCRA.
(3) Testing Requirements:
Upon this exclusion becoming final, Eastman must
perform analytical testing by sampling and
analyzing the RKI bottom ash, RKI fly ash, and RKI
scrubber water blowdown as follows:
(A) Initial Verification Testing:
(i) Collect four representative composite samples of
the RKI bottom ash, RKI fly ash, and RKI scrubber
water blowdown at quarterly intervals after EPA
grants the final exclusion. The first composite
sample of each waste stream may be taken at any
time after EPA grants the final approval. Sampling
must 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) indicates that the RKI bottom ash, RKI fly ash,
and RKI scrubber water blowdown must continue to be
disposed as hazardous waste in accordance with the
applicable hazardous waste requirements until such
time that four consecutive quarterly samples
indicate compliance with delisting levels listed in
paragraph (1).
(iii) Within sixty (60) days after taking its last
quarterly sample, Eastman will report its
analytical test data to EPA. If levels of
constituents measured in the samples of the RKI
bottom ash, RKI fly ash, and RKI scrubber water
blowdown do not exceed the levels set forth in
paragraph (1) of this exclusion for four
consecutive quarters, Eastman can manage and
dispose the non-hazardous RKI bottom ash, RKI fly
ash, and RKI scrubber water blowdown according to
all applicable solid waste regulations.
(B) Annual Testing:
[[Page 58326]]
(i) If Eastman 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), Eastman must
begin annual testing as follows: Eastman must test
a representative composite sample of the RKI bottom
ash, RKI fly ash, and RKI scrubber water blowdown
for all constituents listed in paragraph (1) at
least once per calendar year. If any measured
constituent concentration exceeds the delisting
levels set forth in paragraph (1), Eastman must
collect an additional representative composite
sample within 10 days of being made aware of the
exceedence and test it expeditiously for the
constituent(s) which exceeded delisting levels in
the original annual sample.
(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 Eastman RKI bottom ash, RKI fly ash, and RKI
scrubber water blowdown 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 delisted waste in cubic yards
disposed during the calendar year.
(4) Changes in Operating Conditions: If Eastman
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.
Eastman 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:
Eastman must submit the information described below.
If Eastman 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).
Eastman 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 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
(A) If, anytime after disposal of the delisted waste
Eastman 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 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 annual testing (and retest, if
applicable) of the waste does not meet the
delisting requirements in paragraph 1, Eastman 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 Eastman 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.
[[Page 58327]]
(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 receipt 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.
(7) Notification Requirements:
Eastman must do the following before transporting
the delisted waste. Failure to provide this
notification will result in a violation of the
delisting petition and a possible revocation of the
decision.
(A) Provide a one-time written notification to any
state Regulatory Agency to which or through which
it will transport the delisted waste described
above for disposal, 60 days before beginning such
activities.
(B) For onsite disposal a notice should be submitted
to the State to notify the State that disposal of
the delisted materials have begun.
(C) Update one-time written notification, if it
ships the delisted waste into a different disposal
facility.
(D) Failure to provide this notification will result
in a violation of the delisting variance and a
possible revocation of the decision.
----------------------------------------------------------------------------------------------------------------
Table 2--Waste Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Eastman Chemical Company-- Longview, TX................ RKI Bottom Ash. (EPA Hazardous Waste Number F001,
Texas Operations. F002, F003, F005, F039, K009, K010, U001, U002,
U031, U069, U107, U112, U117, U140, U147, U161,
U213, and U359) generated at a maximum rate of
1,000 cubic yards per calendar year after September
24, 2010 and disposed in Subtitle D Landfill.
RKI Fly Ash. EPA Hazardous Waste Number F001, F002,
F003, F005, F039, K009, K010, U001, U002, U031,
U069, U107, U112, U117, U140, U147, U161, U213, and
U359 generated at a maximum rate of 2,000 cubic
yards per calendar year after September 24, 2010
and disposed in Subtitle D Landfill.
RKI Scrubber Water Blowdown (EPA Hazardous Numbers
D001, D002, D003, D007, D008, D018, D022, F001,
F002, F003, F005, F039, K009, K010, U001, U002,
U031, U069, U107, U112, U117, U140, U147, U161,
U213, and U359 generated at a maximum rate of
643,000 cubic yards (500,000 million gallons) per
calendar year after September 24, 2010 and treated
and discharged from a Wastewater Treatment Plant.
Eastman must implement the testing program in Table
1. Wastes Excluded from Non-Specific Sources for
the petition to be valid.
----------------------------------------------------------------------------------------------------------------
Table 3--Waste Excluded From Commercial Chemical Products, Off-Specification Species, Container Residues, and
Soil Residues Thereof
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Eastman Chemical Company-- Longview, TX................ RKI bottom ash (EPA Hazardous Waste Number F001,
Texas Operations. F002, F003, F005, F039, K009, K010, U001, U002,
U031, U069, U107, U112, U117, U140, U147, U161,
U213, and U359) generated at a maximum rate of
1,000 cubic yards per calendar year after September
24, 2010 and disposed in Subtitle D Landfill.
RKI fly ash EPA Hazardous Waste Number F001, F002,
F003, F005, F039, K009, K010, U001, U002, U031,
U069, U107, U112, U117, U140, U147, U161, U213, and
U359 generated at a maximum rate of 2,000 cubic
yards per calendar year after September 24, 2010
and disposed in Subtitle D Landfill.
RKI scrubber water blowdown (EPA Hazardous Numbers
D001, D002, D003, D007, D008, D018, D022, F001,
F002, F003, F005, F039, K009, K010, U001, U002,
U031, U069, U107, U112, U117, U140, U147, U161,
U213, and U359 generated at a maximum rate of
643,000 cubic yards (500,000 million gallons) per
calendar year after September 24, 2010 and treated
and discharged from a Wastewater Treatment Plant.
Eastman must implement the testing program in Table
1. Wastes Excluded from Non-Specific Wastes for the
petition to be valid.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[[Page 58328]]
[FR Doc. 2010-23965 Filed 9-23-10; 8:45 am]
BILLING CODE 6560-50-P