Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Proposed Exclusion, 7704-7712 [06-1398]
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[FR Doc. E6–2045 Filed 2–13–06; 8:45 am]
BILLING CODE 4910–61–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
[SW FRL–8031–5]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste; Proposed Exclusion
Environmental Protection
Agency (EPA).
ACTION: Proposed rule and request for
comment.
AGENCY:
dsatterwhite on PROD1PC65 with PROPOSAL
SUMMARY: EPA is proposing to grant a
petition submitted by Bayer Material
Science LLC (Bayer) to exclude (or
delist) a certain solid waste generated by
its Baytown, Texas, facility from the
lists of hazardous wastes.
EPA used the Delisting Risk
Assessment Software (DRAS) in the
evaluation of the impact of the
petitioned waste on human health and
the environment.
EPA bases its proposed decision to
grant the petition on an evaluation of
waste-specific information provided by
the petitioner. This proposed decision,
if finalized, would exclude the
petitioned waste from the requirements
of hazardous waste regulations under
the Resource Conservation and
Recovery Act (RCRA).
If finalized, EPA would conclude that
Bayer’s petitioned waste, spent carbon,
is non-hazardous. The spent carbon
from the facility’s waste water treatment
plant, before treatment, would be listed
under the hazardous waste codes K027,
K104, K111, and K112. Long- and shortterm threats to human health and the
environment from the spent carbon as
generated are minimized.
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EPA will accept comments until
March 16, 2006. EPA will stamp
comments received after the close of the
comment period as late. These late
comments may not be considered in
formulating a final decision. Your
requests for a hearing must reach EPA
by March 1, 2006. The request must
contain the information prescribed in 40
CFR 260.20(d) (hereinafter all CFR cites
refer to 40 CFR unless otherwise stated).
ADDRESSES: Please send three copies of
your comments. You should send two
copies to the Chief, Corrective Action
and Waste Minimization Section (6PD–
C), Multimedia Planning and Permitting
Division, U.S. Environmental Protection
Agency Region 6, 1445 Ross Avenue,
Dallas, Texas 75202. You should send a
third copy to the Texas Commission on
Environmental Quality, P.O. Box 13087,
Austin, TX 78712. Identify your
comments at the top with this regulatory
docket number: R6–TXDEL–FY06–
Bayer-Spent Carbon. You may submit
your comments electronically to
Michelle Peace at
peace.michelle@epa.gov. You may also
submit your comments through https://
www.regulations.gov. Follow the on-line
instructions for submitting comments.
You should address requests for a
hearing to Ben Banipal, Chief,
Corrective Action and Waste
Minimization Section (6PD–C),
Multimedia Planning and Permitting
Division, U.S. Environmental Protection
Agency Region 6, 1445 Ross Avenue,
Dallas, Texas 75202.
FOR FURTHER INFORMATION CONTACT:
Michelle Peace (214) 665–7430.
SUPPLEMENTARY INFORMATION: The
information in this section is organized
as follows:
DATES:
I. Overview Information
A. What action is EPA proposing?
B. Why is EPA proposing to approve this
delisting?
C. How will Bayer manage the waste if it
is delisted?
D. When would the proposed delisting
exclusion be finalized?
E. How would this action affect states?
II. Background
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A. What is the history of the delisting
program?
B. What is a delisting petition, and what
does it require of a petitioner?
C. What factors must EPA consider in
deciding whether to grant a delisting
petition?
III. EPA’s Evaluation of the Waste
Information and Data
A. What waste did Bayer petition EPA to
delist?
B. Who is Bayer and what process do they
use to generate the petition waste?
C. What information did Bayer submit to
support this petition?
D. What were the results of Bayer’s
analysis?
E. How did EPA evaluate the risk of
delisting this waste?
F. What did EPA conclude about Bayer’s
analysis?
G. What other factors did EPA consider in
its evaluation?
H. What is EPA’s evaluation of this
delisting petition?
IV. Next Steps
A. With what conditions must the
petitioner comply?
B. What happens, if Bayer violates the
terms and conditions?
V. Public Comments
A. How may I as an interested party submit
comments?
B. How may I review the docket or obtain
copies of the proposed exclusion?
VI. Statutory and Executive Order Reviews
I. Overview Information
A. What action is EPA proposing?
EPA is proposing to grant the
delisting petition submitted by Bayer to
have its spent carbon (K027, K104,
K111, and K112 listed hazardous waste)
excluded, or delisted, from the
definition of a hazardous waste.
B. Why is EPA proposing to approve this
delisting?
Bayer’s petition requests a delisting
for the spent carbon derived from the
treatment of hazardous waste water
listed as K027, K104, K111, and K112 be
delisted. Bayer does not believe that the
petitioned waste meets the criteria for
which EPA listed it. Bayer also believes
no additional constituents or factors
could cause the waste to be hazardous.
EPA’s review of this petition included
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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
§§ 261.11(a)(2) and (a)(3). Based on this
review, EPA agrees with the petitioner
that the waste is non-hazardous with
respect to the original listing criteria. If
EPA had found, based on this review,
that the waste remained hazardous
based on the factors for which the waste
was originally listed, EPA would have
proposed to deny the petition. EPA
evaluated the waste with respect to
other factors or criteria to assess
whether there is a reasonable basis to
believe that such additional factors
could cause the waste to be hazardous.
EPA considered whether the waste is
acutely toxic, the concentration of the
constituents in the waste, their tendency
to migrate and to bioaccumulate, their
persistence in the environment once
released from the waste, plausible and
specific types of management of the
petitioned waste, the quantities of waste
generated, and waste variability. EPA
believes that the petitioned waste does
not meet the listing criteria and thus
should not be a listed waste. EPA’s
proposed decision to delist waste from
the facility is based on the information
submitted in support of this rule,
including descriptions of the waste and
analytical data from the Bayer, Baytown,
Texas facility.
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).
C. How will Bayer manage the waste if
it is delisted?
II. Background
Bayer will dispose of the spent carbon
in a Subtitle D landfill.
D. When would the proposed delisting
exclusion be finalized?
dsatterwhite on PROD1PC65 with PROPOSAL
RCRA section 3001(f) specifically
requires EPA to provide notice and an
opportunity for comment before
granting or denying a final exclusion.
Thus, EPA will not grant the exclusion
unless and until it addresses all timely
public comments (including those at
public hearings, if any) on this proposal.
RCRA section 3010(b)(1), at 42 U.S.C.
6930(b)(1), allows rules to become
effective in less than six months after
EPA addresses public comments when
the regulated facility does not need the
six-month period to come into
compliance. That is the case here,
because this rule, if finalized, would
reduce the existing requirements for
persons generating hazardous wastes.
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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.
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 § 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.
A. What is the history of the delisting
program?
C. What factors must EPA consider in
deciding whether to grant a delisting
petition?
EPA published an amended list of
hazardous wastes from nonspecific and
specific sources on January 16, 1981, as
part of its final and interim final
regulations implementing section 3001
of RCRA. EPA has amended this list
several times and published it in
§§ 261.31 and 261.32. EPA lists these
wastes as hazardous because: (1) They
typically and frequently exhibit one or
more of the characteristics of hazardous
wastes identified in Subpart C of part
261 (that is, ignitability, corrosivity,
reactivity, and toxicity) or (2) they meet
the criteria for listing contained in
§ 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
Besides considering the criteria in
§ 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
§ 261.3(a)(2)(iii) and (iv) and (c)(2)(i),
called the ‘‘mixture’’ and ‘‘derivedfrom’’ rules, respectively. These wastes
are also eligible for exclusion and
remain hazardous wastes until
excluded. See 66 FR 27266 (May 16,
2001).
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Bayer petitioned EPA on September
26, 2003, to exclude from the lists of
hazardous waste contained in §§ 261.31
and 261.32, the spent carbon from its
waste water treatment plant. This
petition also included a request to delist
the Clarifier Outlet Wastewater. This
waste stream was subsequently removed
from the petition. The spent carbon
waste stream is generated from the
Bayer facility located in Baytown,
Texas. The spent carbon is listed under
EPA Hazardous Waste Nos. K027, K104,
K111, and K112, because it is derived
from the treatment of listed waste water
which is treated at the facility’s waste
water treatment plant. Specifically, in
its petition, Bayer requested that EPA
grant an exclusion for 7,728 cubic yards
per calendar year of spent carbon
resulting from the treatment of waste
waters from the manufacturing
processes at its facility.
B. Who is Bayer and what process do
they use to generate the petition waste?
Bayer produces plastics, coatings,
polyurethanes, and industrial
chemicals. Bayer is the first facility in
the United States to employ Tower
Biology, an onsite waste water treatment
plant (the plant) process that uses
bacteria to treat waste above ground to
protect ground water resources. The
waste waters treated at the plant are
generated by the various manufacturing
operations at the Baytown facility.
Influent waste waters enter the plant via
clarifier, the waste water is placed in a
tank that feeds the waste water to a
denitrification reactor prior to treatment
in the biological oxidation towers.
Following biological treatment, the
waste water is run through a secondary
clarifier. Waste water from the clarifier
is sent to an activated carbon absorption
system. Upon exiting the carbon
absorption system, the waste water is
fed to a series of filters. After filtration,
the treated waste water is placed in an
outfall tank for subsequent discharge
under Bayer’s TPDES discharge permit.
Influent waste waters that enter the
plant via the ‘‘brine waste water header’’
are placed in dedicated brine tanks and
a brine carbon absorption system. After
filtration, the brine waste water is
commingled in the outfall tank with the
treated normal waste water prior to
being discharged in accordance with the
Bayer TPDES discharge permit.
Bayer intends to dispose of the
delisted spent carbon at a Subtitle D
Landfill. Treatment of the waste waters,
which result from the manufacturing
process generates the spent carbon that
is classified as K027, K104, K111, and
K112 listed hazardous wastes pursuant
to 40 CFR 261.31. The 40 CFR part 261,
appendix VII hazardous constituents
which are the basis for listing K027,
K104, K111, and K112 hazardous wastes
are: Toluene diisocyanate, aniline,
benzene, diphenylamine, nitrobenzene,
phenylenediamine, 2,4-dinitrotoluene,
To support its petition, Bayer
submitted:
(1) Analytical results of the toxicity
characteristic leaching procedure and
total constituent analysis for volatile
and semivolatile organics, pesticides,
herbicides, dioxins/furans, PCBs and
metals for six spent carbon samples;
(2) Analytical results from multiple
pH leaching of metals; and
(3) Descriptions of the waste water
treatment process and carbon
regeneration process.
D. What were the results of Bayer’s
analysis?
EPA believes that the descriptions of
Bayer’s waste, and the analytical data
submitted in support of the petition
show that the spent carbon is nonhazardous. Analytical data from Bayer’s
spent carbon samples were used in the
Delisting Risk Assessment Software.
The data summaries for detected
constituents are presented in Table 1.
EPA has reviewed the sampling
procedures used by Bayer and has
determined that they satisfy EPA’s
criteria for collecting representative
samples of the variations in constituent
concentrations in the spent carbon. The
data submitted in support of the petition
show that constituents in Bayer’s wastes
are presently below health-based risk
levels used in the delisting decisionmaking. EPA believes that Bayer has
successfully demonstrated that the
spent carbon is non-hazardous.
TABLE 1.—MAXIMUM TCLP AND TOTAL CONSTITUENT CONCENTRATIONS OF THE SPENT CARBON AND CORRESPONDING
DELISTING LIMITS 1
Waste stream
total
concentration
(mg/kg)
Chemical name
dsatterwhite on PROD1PC65 with PROPOSAL
Acetophenone ................................................................................................................................
Aniline ............................................................................................................................................
Antimony ........................................................................................................................................
Arsenic ...........................................................................................................................................
Aldrin ..............................................................................................................................................
Barium ...........................................................................................................................................
Benzene .........................................................................................................................................
Benzyl Alcohol ...............................................................................................................................
Beryllium ........................................................................................................................................
Bis(2-ethylhexyl)phthalate .............................................................................................................
Butylbenzylphthalate ......................................................................................................................
Cadmium .......................................................................................................................................
Chloroform .....................................................................................................................................
Chromium ......................................................................................................................................
Cobalt ............................................................................................................................................
Copper ...........................................................................................................................................
Cyanide ..........................................................................................................................................
Di-n-butyl phthalate .......................................................................................................................
Di-n-octyl phthalate ........................................................................................................................
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Waste stream
TCLP concentration
(mg/l)
Delisting
concentration
(mg/kg)
3.0E–04
2.56E–03
7.10E–03
8.20E–03
8.50E–03
4.42E+01
5.00E–03
2.4E–01
1.0E+00
7.90E–02
2.50E–02
<4.50E–04
2.00E–02
1.50E+01
4.10E+00
6.58E+01
4.33E+01
5.60E–02
3.70E–02
1.60E+00
1.20E–01
1.90E–02
1.72E–02
<2.00E–05
2.43E–01
<5.00E–02
<4.00E–04
5.00E–02
<2.00E–04
1.25E–03
<2.30E–01
<5.00E–02
2.30E–03
2.05E–01
3.29E+00
4.18E–003
2.00E–03
<1.5E–04
8.71E+01
2.82E+00
2.51E–01
3.85E–01
4.82E–05
8.93E+00
5.54E–01
2.61E+02
9.53E–01
3.42E–01
3.54E+00
6.87E–01
2.97E–01
5.00E+00
2.75E+00
1.28E+02
1.65E+00
2.02E+00
4.27E–03
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Chemical name
concentration
(mg/kg)
Dinitrotoluene, 2,4- ........................................................................................................................
Dioxane, 1,4- .................................................................................................................................
Dinitrotoluene, 2,6- ........................................................................................................................
Diphenylamine ...............................................................................................................................
Kepone ..........................................................................................................................................
Lead ...............................................................................................................................................
Mercury ..........................................................................................................................................
2-Nitrophenol .................................................................................................................................
N-Nitrodiphenylamine ....................................................................................................................
Nickel .............................................................................................................................................
Phenol ............................................................................................................................................
Selenium ........................................................................................................................................
Tin ..................................................................................................................................................
Toluene diisocyanate .....................................................................................................................
2,4 toluenediamine ........................................................................................................................
Vanadium .......................................................................................................................................
Zinc ................................................................................................................................................
1.20E+00
1.60E+00
1.70E+00
1.00E–01
<4.15E–01
4.10E–01
<3.4E+00
3.40E+00
<1.0E–04
1.70E+02
4.10E–02
1.20E+00
1.90E+00
<1.0 E–02
<2.0 E–02
1.17E+01
8.64E+01
centration
(mg/l)
<1.5 E–04
<4.6E+00
<1.0E–04
<1.50E–04
<2.20E–04
2.60E–03
<2.60E–02
<1.50E–04
2.30E–01
3.18E–01
<1.00E–04
1.76E–02
9.50E–02
<1.0E–02
<4.0E–03
5.85E–01
4.32E+00
concentration
(mg/kg)
2.49E–02
1.46E+01
2.49E–02
1.43E+00
3.73E–04
5.0E+00
2.94E–02
8.79E+01
3.28E+00
3.45E+00
5.22E+01
2.66E–01
2.75E+01
1.0E–02
5.02E–03
2.58E+00
3.42E+01
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?
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The worst case scenario for
management of the spent carbon was
modeled for disposal in a landfill. EPA
used such information gathered to
identify plausible exposure routes (i.e.,
ground water, surface water, soil, air) for
hazardous constituents present in the
spent carbon. EPA determined that
disposal in a Subtitle D landfill is the
most reasonable, worst-case disposal
scenario for Bayer’s spent carbon. EPA
applied the DRAS described in 65 FR
58015 (September 27, 2000) and 65 FR
75637 (December 4, 2000), to predict the
maximum allowable concentrations of
hazardous constituents that may be
released from the petitioned waste after
disposal and determined the potential
impact of the disposal of Bayer’s
petitioned waste on human health and
the environment. In assessing potential
risks to ground water, EPA used the
maximum estimated waste volumes and
the maximum reported extract
concentrations as inputs to the DRAS
program to estimate the constituent
concentrations in the ground water at a
hypothetical receptor well down
gradient from the disposal site. Using
the risk level (carcinogenic risk of 10¥5
and non-cancer hazard index of 0.1), the
DRAS program can back-calculate the
acceptable receptor well concentrations
(referred to as compliance-point
concentrations) using standard risk
assessment algorithms and Agency
health-based numbers. Using the
maximum compliance-point
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concentrations and EPA Composite
Model for Leachate Migration with
Transformation Products (EPACMTP)
fate and transport modeling factors, the
DRAS further back-calculates the
maximum permissible waste constituent
concentrations not expected to exceed
the compliance-point concentrations in
ground water.
EPA believes that the EPACMTP fate
and transport model represents a
reasonable worst-case scenario for
possible ground water contamination
resulting from disposal of the petitioned
waste in a landfill, and that a reasonable
worst-case scenario is appropriate when
evaluating whether a waste should be
relieved of the protective management
constraints of RCRA Subtitle C. The use
of some reasonable worst-case scenarios
resulted in conservative values for the
compliance-point concentrations and
ensured that the waste, once removed
from hazardous waste regulation, will
not pose a significant threat to human
health and/or the environment. The
DRAS also uses the maximum estimated
waste volumes and the maximum
reported total concentrations to predict
possible risks associated with releases of
waste constituents through surface
pathways (e.g., volatilization or windblown particulate from the landfill). As
in the above ground water analyses, the
DRAS uses the risk level, the healthbased 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
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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 sitespecific factors when applying the fate
and transport model. EPA does control
the type of unit where the waste is
disposed.
EPA also considers the applicability
of ground water monitoring data during
the evaluation of delisting petitions. In
this case, Bayer has never directly
disposed of this material in a solid
waste landfill, so no representative data
exists. Therefore, EPA has determined
that it would be unnecessary to request
ground water monitoring data.
EPA believes that the descriptions of
Bayer’s spent carbon and analytical
characterization which illustrate the
presence of toxic constituents at lower
concentrations in these waste streams
provide a reasonable basis to conclude
that the likelihood of migration of
hazardous constituents from the
petitioned waste will be substantially
reduced so that short-term and longterm threats to human health and the
environment are minimized.
The DRAS results, which calculated
the maximum allowable concentration
of chemical constituents in the spent
carbon are presented in Table 1. Based
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present or formed as reaction products
or by products in Bayer’s waste.
F. What sid EPA conclude about Bayer’s
analysis?
EPA concluded, after reviewing
Bayer’s processes that no other
hazardous constituents of concern, other
than those for which Bayer tested, are
likely to be present or formed as
reaction products or by-products in
Bayer’s wastes. In addition, on the basis
of explanations and analytical data
provided by Bayer, pursuant to § 260.22,
EPA concludes that the petitioned
waste, spent carbon, does not exhibit
any of the characteristics of ignitability,
corrosivity, reactivity, or toxicity. See
§§ 261.21, 261.22, 261.23, and 261.24
respectively.
G. What other factors did EPA consider
in its evaluation?
During the evaluation of this petition,
in addition to the potential impacts to
the ground water, EPA also considered
the potential impact of the petitioned
waste via non-ground water exposure
routes (i.e., air emissions and surface
runoff) for the spent carbon. With regard
to airborne dispersion in particular, EPA
believes that exposure to airborne
contaminants from the petitioned waste
is unlikely. No appreciable air releases
are likely from the spent carbon under
any likely disposal conditions. EPA
evaluated the potential hazards
resulting from the unlikely scenario of
airborne exposure to hazardous
constituents released from the waste
water in an open landfill. The results of
this worst-case analysis indicated that
there is no substantial present or
potential hazard to human health and
the environment from airborne exposure
to constituents from the spent carbon.
H. What is EPA’s evaluation of this
delisting petition?
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The descriptions by Bayer of the
hazardous waste process and analytical
characterization, with the proposed
verification testing requirements (as
discussed later in this action), provide
a reasonable basis for EPA to grant the
petition. The data submitted in support
of the petition show that constituents in
the waste are below the maximum
allowable concentrations (See Table 1).
EPA believes that the spent carbon
generated by Bayer contains hazardous
constituents at levels which will present
minimal short-term and long-term
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carbon. EPA believes that the data
submitted in support of the petition
show the Bayer’s spent carbon to be
non-hazardous.
EPA has reviewed the sampling
procedures used by Bayer and has
determined they satisfy EPA’s criteria
for collecting representative samples of
variable constituent concentrations in
the spent carbon. The data submitted in
support of the petition show that
constituents in Bayer’s wastes are
presently below the compliance-point
concentrations used in the delisting
decision-making process and would not
pose a substantial hazard to the
environment and the public. EPA
believes that Bayer has successfully
demonstrated that the spent carbon is
non-hazardous.
EPA, therefore, proposes to grant an
exclusion to Bayer for the spent carbon
described in its September 2003
petition. EPA’s decision to exclude this
waste is based on analysis performed on
samples taken of the spent carbon.
If EPA finalizes the proposed rule,
EPA will no longer regulate 7,728 cubic
yards/year of spent carbon from Bayer’s
Baytown facility under parts 262
through 268 and the permitting
standards of part 270.
IV. Next Steps
A. With what conditions must the
petitioner comply?
The petitioner, Bayer, must comply
with the requirements in 40 CFR part
261, appendix IX, Table 2 as amended
by this action. The text below gives the
rationale and details of those
requirements.
(1) Delisting Levels
This paragraph provides the levels of
constituent concentrations for which
Bayer must test in the spent carbon,
below which these wastes would be
considered non-hazardous.
EPA selected the set of inorganic and
organic constituents specified in
paragraph (1) and listed in 40 CFR part
261, appendix IX, Table 2, based on
information in the petition. EPA
compiled the inorganic and organic
constituents list from descriptions of the
manufacturing process used by Bayer,
previous test data provided for the
waste, and the respective health-based
levels used in delisting decisionmaking. These delisting levels
correspond to the allowable levels
measured in the leachable
concentrations of the spent carbon.
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for two consecutive quarterly sampling
events. For example, if Bayer is issued
a final exclusion in August, the first
quarter samples are due in November
and the second quarter samples are due
in February. If EPA deems that both the
first and second quarter samples (a total
of four) meet all the delisting limits,
classification of the waste as nonhazardous can begin in March. If
constituent levels in any sample taken
by Bayer exceed any of the delisting
levels set in paragraph (1), Bayer must:
(i) notify EPA in accordance with
paragraph (6), and; (ii) manage and
dispose of the spent carbon as
hazardous waste generated under
Subtitle C of RCRA.
(3) Verification Testing Requirements
Bayer must complete a verification
testing program on the spent carbon to
assure that the wastes do not exceed the
maximum levels specified in paragraph
(1). If EPA determines that the data
collected under this paragraph does not
support the data provided in the
petition, the exclusion will not cover
the tested waste. This verification
program operates on two levels.
The first part of the quarterly
verification testing program consists of
testing a batch of spent carbon for
specified indicator parameters as
described in paragraph (1). Each
quarterly sampling event will consist of
at least two samples of the spent carbon.
Levels of constituents measured in the
samples of the spent carbon that do not
exceed the levels set forth in paragraph
(1) can be considered non-hazardous
after two consecutive quarters of
sampling data meet the levels listed in
paragraph (1).
The second part of the verification
testing program is the annual testing of
two representative composite samples of
the spent carbon for all constituents
specified in paragraph (1).
If Bayer demonstrates for two
consecutive quarters complete
attainment of all specified limits, then
Bayer may request approval of EPA to
reduce the frequency of testing to
annually. If, after review of performance
of the treatment system, EPA finds that
annual testing is adequately protective
of human health and the environment,
then EPA may authorize Bayer to reduce
the quarterly comprehensive sampling
frequency to an annual basis. If the
annual testing of the wastes does not
meet the delisting levels in paragraph
(1), Bayer must notify EPA according to
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sampling results that support the
rationale that the delisting exclusion
should not be withdrawn.
The exclusion is effective upon
publication in the Federal Register but
the change in waste classification as
‘‘non-hazardous’’ cannot begin until two
consecutive quarters of verification
sampling comply with the levels
specified in paragraph (1). The waste
classification as ‘‘non-hazardous’’ is also
not authorized, if Bayer fails to perform
the quarterly and yearly testing as
specified herein. Should Bayer fail to
conduct the quarterly/yearly testing as
specified herein, then disposal of spent
carbon as delisted waste may not occur
in the following quarter(s)/year(s) until
Bayer obtains the written approval of
EPA.
(4) Changes in Operating Conditions
Paragraph (4) would allow Bayer the
flexibility of modifying its processes (for
example, changes in equipment or
change in operating conditions) to
improve its treatment processes.
However, Bayer must prove the
effectiveness of the modified process
and request approval from EPA. Bayer
must manage wastes generated during
the new process demonstration as
hazardous waste through verification
sampling within 30 days of start-up.
(5) Data Submittals
dsatterwhite on PROD1PC65 with PROPOSAL
To provide appropriate
documentation that the Bayer facility is
correctly managing the spent carbon,
Bayer must compile, summarize, and
keep delisting records on-site for a
minimum of five years. It should keep
all analytical data obtained pursuant to
paragraph (3), including quality control
information, for five years. Paragraph (5)
requires that Bayer furnish these data
upon request for inspection by any
employee or representative of EPA or
the State of Texas.
If the proposed exclusion is made
final, then it will apply only to 7,728
cubic yards per calendar year of spent
carbon generated at the Bayer facility
after successful verification testing.
EPA would require Bayer to submit
additional verification data under any of
the following circumstances:
(a) If Bayer significantly alters the
manufacturing process treatment system
except as described in paragraph (4).
(b) If Bayer uses any new
manufacturing or production
process(es), or significantly changes the
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Bayer must submit a modification to
the petition complete with full sampling
and analysis for circumstances where
the waste volume changes and/or
additional waste codes are added to the
waste stream. EPA will publish an
amendment to the exclusion if the
changes are acceptable.
Bayer must manage waste volumes
greater than 7,728 cubic yards of spent
carbon as hazardous waste until EPA
grants a revised exclusion. When this
exclusion becomes final, the
management by Bayer of the spent
carbon covered in this petition would be
relieved from Subtitle C jurisdiction.
Bayer may not classify the waste as nonhazardous until the revised exclusion is
finalized.
(6) Reopener
The purpose of paragraph (6) is to
require Bayer to disclose new or
different information related to a
condition at the facility or disposal of
the waste, if it is pertinent to the
delisting. Bayer must also use this
procedure if the waste sample in the
annual testing fails to meet the levels
found in paragraph (1). This provision
will allow EPA to reevaluate the
exclusion, if a source provides new or
additional information to EPA. EPA will
evaluate the information on which it
based the decision to see if it is still
correct or if circumstances have
changed so that the information is no
longer correct or would cause EPA to
deny the petition, if presented.
This provision expressly requires
Bayer to report differing site conditions
or assumptions used in the petition in
addition to failure to meet the annual
testing conditions within 10 days of
discovery. If EPA discovers such
information itself or from a third party,
it can act on it as appropriate. The
language being proposed is similar to
those provisions found in RCRA
regulations governing no-migration
petitions at § 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
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conducting the TCLP, leading EPA to
repeal the delisting. If an immediate
threat to human health and the
environment presents itself, EPA will
continue to address these situations on
a case-by-case basis. Where necessary,
EPA will make a good cause finding to
justify emergency rulemaking. See APA
section 553 (b)(3)(B).
B. What happens, if Bayer violates the
terms and conditions?
If Bayer violates the terms and
conditions established in the exclusion,
EPA will start procedures to withdraw
the exclusion. Where there is an
immediate threat to human health and
the environment, EPA will evaluate the
need for enforcement activities on a
case-by-case basis. EPA expects Bayer to
conduct the appropriate waste analysis
and comply with the criteria explained
above in paragraph (1) of the exclusion.
V. Public Comments
A. How may I as an interested party
submit comments?
EPA is requesting public comments
on this proposed decision. Please send
three copies of your comments. Send
two copies to the Chief, Corrective
Action and Waste Minimization
Section, Multimedia Permitting and
Planning Division, U. S. Environmental
Protection Agency Region 6, 1445 Ross
Avenue, Dallas, Texas 75202. Send a
third copy to the Industrial Hazardous
Waste Permits Division, Technical
Evaluation Team, Texas Commission on
Environmental Quality, P.O. Box 13087,
Austin, TX 78711–3087. Identify your
comments at the top with this regulatory
docket number: R6–TXDEL–FY06–
Bayer-Spent Carbon. You may submit
your comments electronically to
Michelle Peace at
peace.michelle@epa.gov.
B. How may I review the docket or
obtain copies of the proposed
exclusion?
You may review the RCRA regulatory
docket for this proposed rule at the U.
S. Environmental Protection Agency
Region 6, 1445 Ross Avenue, Dallas, TX
75202. It is available for viewing in EPA
Freedom of Information Act Review
Room from 9 a.m. to 4 p.m., Monday
through Friday, excluding Federal
holidays. Call (214) 665–6444 for
appointments. The public may copy
material from any regulatory docket at
no cost for the first 100 pages and at
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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
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
section 801 the following types of rules
(1) Rules of particular applicability; (2)
rules relating to agency management or
personnel; and (3) rules of agency
organization, procedure, or practice that
do not substantially affect the rights or
obligations of non-agency parties 5
U.S.C. 804(3). EPA is not required to
submit a rule report regarding this
action under section 801 because this is
a rule of particular applicability.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous
waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C.
6921(f).
Dated: February 3, 2006.
William Rhea,
Acting Director, Multimedia Planning and
Permitting Division.
For the reasons set out in the
preamble, 40 CFR part 261 is proposed
to be amended as follows:
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921,
6922, and 6938.
2. In Table 2 of Appendix IX of Part
261 add the following waste stream in
alphabetical order by facility to read as
follows:
Appendix IX to Part 261—Waste
Excluded Under §§ 260.20 and 260.22
TABLE 2.—WASTE EXCLUDED FROM SPECIFIC SOURCES
Address
Waste Description
*
Bayer Material Science ......
dsatterwhite on PROD1PC65 with PROPOSAL
Facility
*
Baytown, TX .....
*
*
*
*
*
Spent Carbon (EPA Hazardous Waste Numbers K027, K104, K111, and K112) generated at a
maximum rate of 7,728 cubic yards per calendar year after [publication date of the final rule].
For the exclusion to be valid, Bayer must implement a verification testing program that meets
the following Paragraphs:
(1) Delisting Levels: All concentrations for those constituents must not exceed the maximum allowable concentrations in mg/l specified in this paragraph.
Spent Carbon Leachable Concentrations (mg/l): Antimony–0.251; Arsenic–0.385, Barium–8.93;
Beryllium–0.953; Cadmium–0.687; Chromium–5.0; Cobalt–2.75; Copper–128.0; Cyanide–
1.65; Lead–5.0; Mercury–0.0294; Nickel–3.45; Selenium–0.266 ; Tin–2.75; Vanadium–2.58;
Zinc–34.2; Aldrin–0.0000482; Acetophenone–87.1; Aniline–2.82; Benzene—0.554; Bis(2ethylhexyl)phthalate–0.342; Benzyl alcohol–261; Butylbenzylphthalate–3.54; Chloroform–
0.297; Di-n-octyl phthalate–0.00427; 2,4-Dinitrotoluene–0.0249; 2,6-Dinitrotoluene–0.0249
Diphenylamine-1.43; 1,4-Dioxane–14.6; Di-n-butyl phthalate–2.02; Kepone–0.000373; 2Nitrophenol–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.
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dsatterwhite on PROD1PC65 with PROPOSAL
paragraph (1) for the spent carbon, Bayer must do the following:
(i) Notify EPA in accordance with paragraph (6) and
(ii) Manage and dispose the spent carbon as hazardous waste generated under Subtitle C of
RCRA.
(3) Testing Requirements:
Upon this exclusion becoming final, Bayer may perform quarterly analytical testing by sampling
and analyzing the spent carbon as follows:
(A) Quarterly Testing:
(i) Collect two representative composite samples of the spent carbon at quarterly intervals after
EPA grants the final exclusion. The first composite samples may be taken at any time after
EPA grants the final approval. Sampling should be performed in accordance with the sampling plan approved by EPA in support of the exclusion.
(ii) Analyze the samples for all constituents listed in paragraph (1). Any composite sample
taken that exceeds the delisting levels listed in paragraph (1) for the spent carbon must be
disposed as hazardous waste in accordance with the applicable hazardous waste requirements.
(iii) Within thirty (30) days after taking its first quarterly sample, Bayer will report its first quarterly analytical test data to EPA. If levels of constituents measured in the samples of the
spent carbon do not exceed the levels set forth in paragraph (1) of this exclusion for two consecutive quarters, Bayer can manage and dispose the non-hazardous spent carbon according to all applicable solid waste regulations.
(B) Annual Testing:
(i) If Bayer completes the quarterly testing specified in paragraph (3) above and no sample contains a constituent at a level which exceeds the limits set forth in paragraph (1), Bayer may
begin annual testing as follows: Bayer must test two representative composite samples of the
spent carbon for all constituents listed in paragraph (1) at least once per calendar year.
(ii) The samples for the annual testing shall be a representative composite sample according to
appropriate methods. As applicable to the method-defined parameters of concern, analyses
requiring the use of SW–846 methods incorporated by reference in 40 CFR 260.11 must be
used without substitution. As applicable, the SW–846 methods might include Methods 0010,
0011, 0020, 0023A, 0030, 0031, 0040, 0050, 0051, 0060, 0061, 1010A, 1020B, 1110A,
1310B, 1311, 1312, 1320, 1330A, 9010C, 9012B, 9040C, 9045D, 9060A, 9070A (uses EPA
Method 1664, Rev. A), 9071B, and 9095B. Methods must meet Performance Based Measurement System Criteria in which the Data Quality Objectives are to demonstrate that samples of the Bayer spent carbon are representative for all constituents listed in paragraph (1).
(iii) The samples for the annual testing taken for the second and subsequent annual testing
events shall be taken within the same calendar month as the first annual sample taken.
(iv) The annual testing report should include the total amount of waste in cubic yards disposed
during the calendar year.
(4) Changes in Operating Conditions: If Bayer significantly changes the process described in its
petition or starts any processes that generate(s) the waste that may or could affect the composition or type of waste generated (by illustration, but not limitation, changes in equipment
or operating conditions of the treatment process), it must notify EPA in writing and it may no
longer handle the wastes generated from the new process as non-hazardous until the wastes
meet the delisting levels set in paragraph (1) and it has received written approval to do so
from EPA.
Bayer must submit a modification to the petition complete with full sampling and analysis for circumstances where the waste volume changes and/or additional waste codes are added to
the waste stream.
(5) Data Submittals:
Bayer must submit the information described below. If Bayer fails to submit the required data
within the specified time or maintain the required records on-site for the specified time, EPA,
at its discretion, will consider this sufficient basis to reopen the exclusion as described in
paragraph (6). Bayer must:
(A) Submit the data obtained through paragraph 3 to the Chief, Corrective Action and Waste
Minimization Section, Multimedia Planning and Permitting Division, U. S. Environmental Protection Agency Region 6, 1445 Ross Ave., Dallas, Texas, 75202, within the time specified. All
supporting data can be submitted on CD-ROM or some comparable electronic media.
(B) Compile records of analytical data from paragraph (3), summarized, and maintained on-site
for a minimum of five years.
(C) Furnish these records and data when either EPA or the State of Texas requests them for
inspection.
(D) Send along with all data a signed copy of the following certification statement, to attest to
the truth and accuracy of the data submitted:
‘‘Under civil and criminal penalty of law for the making or submission of false or fraudulent
statements or representations (pursuant to the applicable provisions of the Federal Code,
which include, but may not be limited to, 18 U.S.C. 1001 and 42 U.S.C. 6928), I certify that
the information contained in or accompanying this document is true, accurate and complete.
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(their) truth and accuracy, I certify as the company official having supervisory responsibility
for the persons who, acting under my direct instructions, made the verification that this information is true, accurate and complete.
If any of this information is determined by EPA in its sole discretion to be false, inaccurate or
incomplete, and upon conveyance of this fact to the company, I recognize and agree that this
exclusion of waste will be void as if it never had effect or to the extent directed by EPA and
that the company will be liable for any actions taken in contravention of the company’s RCRA
and CERCLA obligations premised upon the company’s reliance on the void exclusion.’’
(6) Reopener
(A) If, anytime after disposal of the delisted waste Bayer possesses or is otherwise made
aware of any environmental data (including but not limited to leachate data or ground water
monitoring data) or any other data relevant to the delisted waste indicating that any constituent identified for the delisting verification testing is at level higher than the delisting level
allowed by the Division Director in granting the petition, then the facility must report the data,
in writing, to the Division Director within 10 days of first possessing or being made aware of
that data.
(B) If either the quarterly or annual testing of the waste does not meet the delisting requirements in paragraph 1, Bayer must report the data, in writing, to the Division Director within
10 days of first possessing or being made aware of that data.
(C) If Bayer fails to submit the information described in paragraphs (5),(6)(A) or (6)(B) or if any
other information is received from any source, the Division Director will make a preliminary
determination as to whether the reported information requires EPA action to protect human
health and/or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate response necessary to protect human health and the environment.
(D) If the Division Director determines that the reported information requires action by EPA, the
Division Director will notify the facility in writing of the actions the Division Director believes
are necessary to protect human health and the environment. The notice shall include a statement of the proposed action and a statement providing the facility with an opportunity to
present information as to why the proposed EPA action is not necessary. The facility shall
have 10 days from the date of the Division Director’s notice to present such information.
(E) Following the receipt of information from the facility described in paragraph (6)(D) or (if no
information is presented under paragraph (6)(D)) the initial receipt of information described in
paragraphs (5), (6)(A) or (6)(B), the Division Director will issue a final written determination
describing EPA actions that are necessary to protect human health and/or the environment.
Any required action described in the Division Director’s determination shall become effective
immediately, unless the Division Director provides otherwise.
*
*
*
BILLING CODE 6560–50–P
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
The comment period is ninety
(90) days following the second
publication of this proposed rule in a
newspaper of local circulation in each
community.
DATES:
44 CFR Part 67
[Docket No. FEMA–P–7913]
Proposed Flood Elevation
Determinations
The proposed BFEs for each
community are available for inspection
at the office of the Chief Executive
Officer of each community. The
respective addresses are listed in the
table below.
ADDRESSES:
Federal Emergency
Management Agency (FEMA),
Department of Homeland Security.
ACTION: Proposed rule.
AGENCY:
dsatterwhite on PROD1PC65 with PROPOSAL
SUMMARY: Technical information or
comments are requested on the
proposed Base (1% annual-chance)
Flood Elevations (BFEs) and proposed
BFE modifications for the communities
listed below. The BFEs and modified
15:42 Feb 13, 2006
*
BFEs are the basis for the floodplain
management measures that the
community is required either to adopt
or to show evidence of being already in
effect in order to qualify or remain
qualified for participation in the
National Flood Insurance Program
(NFIP).
[FR Doc. 06–1398 Filed 2–13–06; 8:45 am]
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*
Jkt 208001
FOR FURTHER INFORMATION CONTACT:
Doug Bellomo, P.E., Hazard
Identification Section, Federal
Emergency Management Agency, 500 C
Street, SW., Washington, DC 20472,
(202) 646–2903.
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*
*
The
Federal Emergency Management Agency
makes the final determinations listed
below for the modified BFEs for each
community listed. These modified
elevations have been published in
newspapers of local circulation and
ninety (90) days have elapsed since that
publication. The Mitigation Division
Director has resolved any appeals
resulting from this notification.
These proposed BFEs and modified
BFEs, together with the floodplain
management criteria required by 44 CFR
60.3, are the minimum that are required.
They should not be construed to mean
that the community must change any
existing ordinances that are more
stringent in their floodplain
management requirements. The
community may at any time enact
stricter requirements of its own, or
pursuant to policies established by other
Federal, State, or regional entities.
These proposed elevations are used to
meet the floodplain management
requirements of the NFIP and are also
SUPPLEMENTARY INFORMATION:
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]]>Agencies
[Federal Register Volume 71, Number 30 (Tuesday, February 14, 2006)]
[Proposed Rules]
[Pages 7704-7712]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-1398]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[SW FRL-8031-5]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Proposed Exclusion
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule and request for comment.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to grant a petition submitted by Bayer
Material Science LLC (Bayer) to exclude (or delist) a certain solid
waste generated by its Baytown, Texas, facility from the lists of
hazardous wastes.
EPA used the Delisting Risk Assessment Software (DRAS) in the
evaluation of the impact of the petitioned waste on human health and
the environment.
EPA bases its proposed decision to grant the petition on an
evaluation of waste-specific information provided by the petitioner.
This proposed decision, if finalized, would exclude the petitioned
waste from the requirements of hazardous waste regulations under the
Resource Conservation and Recovery Act (RCRA).
If finalized, EPA would conclude that Bayer's petitioned waste,
spent carbon, is non-hazardous. The spent carbon from the facility's
waste water treatment plant, before treatment, would be listed under
the hazardous waste codes K027, K104, K111, and K112. Long- and short-
term threats to human health and the environment from the spent carbon
as generated are minimized.
DATES: EPA will accept comments until March 16, 2006. EPA will stamp
comments received after the close of the comment period as late. These
late comments may not be considered in formulating a final decision.
Your requests for a hearing must reach EPA by March 1, 2006. The
request must contain the information prescribed in 40 CFR 260.20(d)
(hereinafter all CFR cites refer to 40 CFR unless otherwise stated).
ADDRESSES: Please send three copies of your comments. You should send
two copies to the Chief, Corrective Action and Waste Minimization
Section (6PD-C), Multimedia Planning and Permitting Division, U.S.
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas,
Texas 75202. You should send a third copy to the Texas Commission on
Environmental Quality, P.O. Box 13087, Austin, TX 78712. Identify your
comments at the top with this regulatory docket number: R6-TXDEL-FY06-
Bayer-Spent Carbon. You may submit your comments electronically to
Michelle Peace at peace.michelle@epa.gov. You may also submit your
comments through https://www.regulations.gov. Follow the on-line
instructions for submitting comments.
You should address requests for a hearing to Ben Banipal, Chief,
Corrective Action and Waste Minimization Section (6PD-C), Multimedia
Planning and Permitting Division, U.S. Environmental Protection Agency
Region 6, 1445 Ross Avenue, Dallas, Texas 75202.
FOR FURTHER INFORMATION CONTACT: Michelle Peace (214) 665-7430.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What action is EPA proposing?
B. Why is EPA proposing to approve this delisting?
C. How will Bayer manage the waste if it is delisted?
D. When would the proposed delisting exclusion be finalized?
E. How would this action affect states?
II. Background
A. What is the history of the delisting program?
B. What is a delisting petition, and what does it require of a
petitioner?
C. What factors must EPA consider in deciding whether to grant a
delisting petition?
III. EPA's Evaluation of the Waste Information and Data
A. What waste did Bayer petition EPA to delist?
B. Who is Bayer and what process do they use to generate the
petition waste?
C. What information did Bayer submit to support this petition?
D. What were the results of Bayer's analysis?
E. How did EPA evaluate the risk of delisting this waste?
F. What did EPA conclude about Bayer's analysis?
G. What other factors did EPA consider in its evaluation?
H. What is EPA's evaluation of this delisting petition?
IV. Next Steps
A. With what conditions must the petitioner comply?
B. What happens, if Bayer violates the terms and conditions?
V. Public Comments
A. How may I as an interested party submit comments?
B. How may I review the docket or obtain copies of the proposed
exclusion?
VI. Statutory and Executive Order Reviews
I. Overview Information
A. What action is EPA proposing?
EPA is proposing to grant the delisting petition submitted by Bayer
to have its spent carbon (K027, K104, K111, and K112 listed hazardous
waste) excluded, or delisted, from the definition of a hazardous waste.
B. Why is EPA proposing to approve this delisting?
Bayer's petition requests a delisting for the spent carbon derived
from the treatment of hazardous waste water listed as K027, K104, K111,
and K112 be delisted. Bayer does not believe that the petitioned waste
meets the criteria for which EPA listed it. Bayer also believes no
additional constituents or factors could cause the waste to be
hazardous. EPA's review of this petition included
[[Page 7705]]
consideration of the original listing criteria, and the additional
factors required by the Hazardous and Solid Waste Amendments of 1984
(HSWA). See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR
260.22 (d)(1)-(4). In making the initial delisting determination, EPA
evaluated the petitioned waste against the listing criteria and factors
cited in Sec. Sec. 261.11(a)(2) and (a)(3). Based on this review, EPA
agrees with the petitioner that the waste is non-hazardous with respect
to the original listing criteria. If EPA had found, based on this
review, that the waste remained hazardous based on the factors for
which the waste was originally listed, EPA would have proposed to deny
the petition. EPA evaluated the waste with respect to other factors or
criteria to assess whether there is a reasonable basis to believe that
such additional factors could cause the waste to be hazardous. EPA
considered whether the waste is acutely toxic, the concentration of the
constituents in the waste, their tendency to migrate and to
bioaccumulate, their persistence in the environment once released from
the waste, plausible and specific types of management of the petitioned
waste, the quantities of waste generated, and waste variability. EPA
believes that the petitioned waste does not meet the listing criteria
and thus should not be a listed waste. EPA's proposed decision to
delist waste from the facility is based on the information submitted in
support of this rule, including descriptions of the waste and
analytical data from the Bayer, Baytown, Texas facility.
C. How will Bayer manage the waste if it is delisted?
Bayer will dispose of the spent carbon in a Subtitle D landfill.
D. When would the proposed delisting exclusion be finalized?
RCRA section 3001(f) specifically requires EPA to provide notice
and an opportunity for comment before granting or denying a final
exclusion. Thus, EPA will not grant the exclusion unless and until it
addresses all timely public comments (including those at public
hearings, if any) on this proposal.
RCRA section 3010(b)(1), at 42 U.S.C. 6930(b)(1), allows rules to
become effective in less than six months after EPA addresses public
comments when the regulated facility does not need the six-month period
to come into compliance. That is the case here, because this rule, if
finalized, would reduce the existing requirements for persons
generating hazardous wastes.
EPA believes that this exclusion should be effective immediately
upon final publication because a six-month deadline is not necessary to
achieve the purpose of section 3010(b), and a later effective date
would impose unnecessary hardship and expense on this petitioner. These
reasons also provide good cause for making this rule effective
immediately, upon final publication, under the Administrative Procedure
Act, 5 U.S.C. 553(d).
E. How would this action affect the states?
Because EPA is issuing this exclusion under the Federal RCRA
delisting program, only states subject to Federal RCRA delisting
provisions would be affected. This would exclude states which have
received authorization from EPA to make their own delisting decisions.
EPA allows the states to impose their own non-RCRA regulatory
requirements that are more stringent than EPA's, under section 3009 of
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a
provision that prohibits a Federally issued exclusion from taking
effect in the state. Because a dual system (that is, both Federal
(RCRA) and state (non-RCRA) programs) may regulate a petitioner's
waste, EPA urges petitioners to contact the state regulatory authority
to establish the status of their wastes under the state law. Delisting
petitions approved by EPA Administrator under 40 CFR 260.22 are
effective in the State of Texas only after the final rule has been
published in the Federal Register.
II. Background
A. What is the history of the delisting program?
EPA published an amended list of hazardous wastes from nonspecific
and specific sources on January 16, 1981, as part of its final and
interim final regulations implementing section 3001 of RCRA. EPA has
amended this list several times and published it in Sec. Sec. 261.31
and 261.32. EPA lists these wastes as hazardous because: (1) They
typically and frequently exhibit one or more of the characteristics of
hazardous wastes identified in Subpart C of part 261 (that is,
ignitability, corrosivity, reactivity, and toxicity) or (2) they meet
the criteria for listing contained in Sec. 261.11(a)(2) or (a)(3).
Individual waste streams may vary, however, depending on raw
materials, industrial processes, and other factors. Thus, while a waste
described in these regulations generally is hazardous, a specific waste
from an individual facility meeting the listing description may not be
hazardous.
For this reason, Sec. Sec. 260.20 and 260.22 provide an exclusion
procedure, called delisting, which allows persons to prove that EPA
should not regulate a specific waste from a particular generating
facility as a hazardous waste.
B. What is a delisting petition, and what does it require of a
petitioner?
A delisting petition is a request from a facility to EPA or an
authorized State to exclude wastes from the list of hazardous wastes.
The facility petitions EPA because it does not believe the wastes
should be hazardous under RCRA regulations.
In a delisting petition, the petitioner must show that wastes
generated at a particular facility do not meet any of the criteria for
which the waste was listed. The criteria for which EPA lists a waste
are in part 261 and further explained in the background documents for
the listed waste.
In addition, under Sec. 260.22, a petitioner must prove that the
waste does not exhibit any of the hazardous waste characteristics and
present sufficient information for EPA to decide whether factors other
than those for which the waste was listed warrant retaining it as a
hazardous waste. See part 261 and the background documents for the
listed waste.
Generators remain obligated under RCRA to confirm whether their
waste remains non-hazardous based on the hazardous waste
characteristics even if EPA has ``delisted'' the waste.
C. What factors must EPA consider in deciding whether to grant a
delisting petition?
Besides considering the criteria in Sec. 260.22(a) and section
3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for
the listed wastes, EPA must consider any factors (including additional
constituents) other than those for which EPA listed the waste, if a
reasonable basis exists to determine that these additional factors
could cause the waste to be hazardous.
EPA must also consider as hazardous waste mixtures containing
listed hazardous wastes and wastes derived from treating, storing, or
disposing of listed hazardous waste. See Sec. 261.3(a)(2)(iii) and
(iv) and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules,
respectively. These wastes are also eligible for exclusion and remain
hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).
[[Page 7706]]
III. EPA's Evaluation of the Waste Information and Data
A. What waste did Bayer petition EPA to delist?
Bayer petitioned EPA on September 26, 2003, to exclude from the
lists of hazardous waste contained in Sec. Sec. 261.31 and 261.32, the
spent carbon from its waste water treatment plant. This petition also
included a request to delist the Clarifier Outlet Wastewater. This
waste stream was subsequently removed from the petition. The spent
carbon waste stream is generated from the Bayer facility located in
Baytown, Texas. The spent carbon is listed under EPA Hazardous Waste
Nos. K027, K104, K111, and K112, because it is derived from the
treatment of listed waste water which is treated at the facility's
waste water treatment plant. Specifically, in its petition, Bayer
requested that EPA grant an exclusion for 7,728 cubic yards per
calendar year of spent carbon resulting from the treatment of waste
waters from the manufacturing processes at its facility.
B. Who is Bayer and what process do they use to generate the petition
waste?
Bayer produces plastics, coatings, polyurethanes, and industrial
chemicals. Bayer is the first facility in the United States to employ
Tower Biology, an onsite waste water treatment plant (the plant)
process that uses bacteria to treat waste above ground to protect
ground water resources. The waste waters treated at the plant are
generated by the various manufacturing operations at the Baytown
facility. Influent waste waters enter the plant via the ``normal waste
water header'' or the ``brine waste water header.'' The waste water
entering the plant via the normal waste water header is placed in the
primary clarifier. From the primary clarifier, the waste water is
placed in a tank that feeds the waste water to a denitrification
reactor prior to treatment in the biological oxidation towers.
Following biological treatment, the waste water is run through a
secondary clarifier. Waste water from the clarifier is sent to an
activated carbon absorption system. Upon exiting the carbon absorption
system, the waste water is fed to a series of filters. After
filtration, the treated waste water is placed in an outfall tank for
subsequent discharge under Bayer's TPDES discharge permit.
Influent waste waters that enter the plant via the ``brine waste
water header'' are placed in dedicated brine tanks and a brine carbon
absorption system. After filtration, the brine waste water is
commingled in the outfall tank with the treated normal waste water
prior to being discharged in accordance with the Bayer TPDES discharge
permit.
Bayer intends to dispose of the delisted spent carbon at a Subtitle
D Landfill. Treatment of the waste waters, which result from the
manufacturing process generates the spent carbon that is classified as
K027, K104, K111, and K112 listed hazardous wastes pursuant to 40 CFR
261.31. The 40 CFR part 261, appendix VII hazardous constituents which
are the basis for listing K027, K104, K111, and K112 hazardous wastes
are: Toluene diisocyanate, aniline, benzene, diphenylamine,
nitrobenzene, phenylenediamine, 2,4-dinitrotoluene, 2,4-toluenediamine,
o-toluidine, and p-toluidine.
C. What information did Bayer submit to support this petition?
To support its petition, Bayer submitted:
(1) Analytical results of the toxicity characteristic leaching
procedure and total constituent analysis for volatile and semivolatile
organics, pesticides, herbicides, dioxins/furans, PCBs and metals for
six spent carbon samples;
(2) Analytical results from multiple pH leaching of metals; and
(3) Descriptions of the waste water treatment process and carbon
regeneration process.
D. What were the results of Bayer's analysis?
EPA believes that the descriptions of Bayer's waste, and the
analytical data submitted in support of the petition show that the
spent carbon is non-hazardous. Analytical data from Bayer's spent
carbon samples were used in the Delisting Risk Assessment Software. The
data summaries for detected constituents are presented in Table 1. EPA
has reviewed the sampling procedures used by Bayer and has determined
that they satisfy EPA's criteria for collecting representative samples
of the variations in constituent concentrations in the spent carbon.
The data submitted in support of the petition show that constituents in
Bayer's wastes are presently below health-based risk levels used in the
delisting decision-making. EPA believes that Bayer has successfully
demonstrated that the spent carbon is non-hazardous.
Table 1.--Maximum TCLP and Total Constituent Concentrations of the Spent Carbon and Corresponding Delisting
Limits \1\
----------------------------------------------------------------------------------------------------------------
Waste stream total Waste stream TCLP Delisting
Chemical name concentration (mg/kg) concentration (mg/l) concentration (mg/kg)
----------------------------------------------------------------------------------------------------------------
Acetophenone....................... 3.0E-04 1.60E+00 8.71E+01
Aniline............................ 2.56E-03 1.20E-01 2.82E+00
Antimony........................... 7.10E-03 1.90E-02 2.51E-01
Arsenic............................ 8.20E-03 1.72E-02 3.85E-01
Aldrin............................. 8.50E-03 <2.00E-05 4.82E-05
Barium............................. 4.42E+01 2.43E-01 8.93E+00
Benzene............................ 5.00E-03 <5.00E-02 5.54E-01
Benzyl Alcohol..................... 2.4E-01 <4.00E-04 2.61E+02
Beryllium.......................... 1.0E+00 5.00E-02 9.53E-01
Bis(2-ethylhexyl)phthalate......... 7.90E-02 <2.00E-04 3.42E-01
Butylbenzylphthalate............... 2.50E-02 1.25E-03 3.54E+00
Cadmium............................ <4.50E-04 <2.30E-01 6.87E-01
Chloroform......................... 2.00E-02 <5.00E-02 2.97E-01
Chromium........................... 1.50E+01 2.30E-03 5.00E+00
Cobalt............................. 4.10E+00 2.05E-01 2.75E+00
Copper............................. 6.58E+01 3.29E+00 1.28E+02
Cyanide............................ 4.33E+01 4.18E-003 1.65E+00
Di-n-butyl phthalate............... 5.60E-02 2.00E-03 2.02E+00
Di-n-octyl phthalate............... 3.70E-02 <1.5E-04 4.27E-03
[[Page 7707]]
Dinitrotoluene, 2,4-............... 1.20E+00 <1.5 E-04 2.49E-02
Dioxane, 1,4-...................... 1.60E+00 <4.6E+00 1.46E+01
Dinitrotoluene, 2,6-............... 1.70E+00 <1.0E-04 2.49E-02
Diphenylamine...................... 1.00E-01 <1.50E-04 1.43E+00
Kepone............................. <4.15E-01 <2.20E-04 3.73E-04
Lead............................... 4.10E-01 2.60E-03 5.0E+00
Mercury............................ <3.4E+00 <2.60E-02 2.94E-02
2-Nitrophenol...................... 3.40E+00 <1.50E-04 8.79E+01
N-Nitrodiphenylamine............... <1.0E-04 2.30E-01 3.28E+00
Nickel............................. 1.70E+02 3.18E-01 3.45E+00
Phenol............................. 4.10E-02 <1.00E-04 5.22E+01
Selenium........................... 1.20E+00 1.76E-02 2.66E-01
Tin................................ 1.90E+00 9.50E-02 2.75E+01
Toluene diisocyanate............... <1.0 E-02 <1.0E-02 1.0E-02
2,4 toluenediamine................. <2.0 E-02 <4.0E-03 5.02E-03
Vanadium........................... 1.17E+01 5.85E-01 2.58E+00
Zinc............................... 8.64E+01 4.32E+00 3.42E+01
----------------------------------------------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent found in any one sample. These levels
do not necessarily represent the specific levels found in one sample.
< Denotes that the constituent was below the detection limit.
E. How did EPA evaluate the risk of delisting this waste?
The worst case scenario for management of the spent carbon was
modeled for disposal in a landfill. EPA used such information gathered
to identify plausible exposure routes (i.e., ground water, surface
water, soil, air) for hazardous constituents present in the spent
carbon. EPA determined that disposal in a Subtitle D landfill is the
most reasonable, worst-case disposal scenario for Bayer's spent carbon.
EPA applied the DRAS described in 65 FR 58015 (September 27, 2000) and
65 FR 75637 (December 4, 2000), to predict the maximum allowable
concentrations of hazardous constituents that may be released from the
petitioned waste after disposal and determined the potential impact of
the disposal of Bayer's petitioned waste on human health and the
environment. In assessing potential risks to ground water, EPA used the
maximum estimated waste volumes and the maximum reported extract
concentrations as inputs to the DRAS program to estimate the
constituent concentrations in the ground water at a hypothetical
receptor well down gradient from the disposal site. Using the risk
level (carcinogenic risk of 10-5 and non-cancer hazard index
of 0.1), the DRAS program can back-calculate the acceptable receptor
well concentrations (referred to as compliance-point concentrations)
using standard risk assessment algorithms and Agency health-based
numbers. Using the maximum compliance-point concentrations and EPA
Composite Model for Leachate Migration with Transformation Products
(EPACMTP) fate and transport modeling factors, the DRAS further back-
calculates the maximum permissible waste constituent concentrations not
expected to exceed the compliance-point concentrations in ground water.
EPA believes that the EPACMTP fate and transport model represents a
reasonable worst-case scenario for possible ground water contamination
resulting from disposal of the petitioned waste in a landfill, and that
a reasonable worst-case scenario is appropriate when evaluating whether
a waste should be relieved of the protective management constraints of
RCRA Subtitle C. The use of some reasonable worst-case scenarios
resulted in conservative values for the compliance-point concentrations
and ensured that the waste, once removed from hazardous waste
regulation, will not pose a significant threat to human health and/or
the environment. The DRAS also uses the maximum estimated waste volumes
and the maximum reported total concentrations to predict possible risks
associated with releases of waste constituents through surface pathways
(e.g., volatilization or wind-blown particulate from the landfill). As
in the above ground water analyses, the DRAS uses the risk level, the
health-based data and standard risk assessment and exposure algorithms
to predict maximum compliance-point concentrations of waste
constituents at a hypothetical point of exposure. Using fate and
transport equations, the DRAS uses the maximum compliance-point
concentrations and back-calculates the maximum allowable waste
constituent concentrations (or ``delisting levels'').
In most cases, because a delisted waste is no longer subject to
hazardous waste control, EPA is generally unable to predict, and does
not presently control, how a petitioner will manage a waste after
delisting. Therefore, EPA currently believes that it is inappropriate
to consider extensive site-specific factors when applying the fate and
transport model. EPA does control the type of unit where the waste is
disposed.
EPA also considers the applicability of ground water monitoring
data during the evaluation of delisting petitions. In this case, Bayer
has never directly disposed of this material in a solid waste landfill,
so no representative data exists. Therefore, EPA has determined that it
would be unnecessary to request ground water monitoring data.
EPA believes that the descriptions of Bayer's spent carbon and
analytical characterization which illustrate the presence of toxic
constituents at lower concentrations in these waste streams provide a
reasonable basis to conclude that the likelihood of migration of
hazardous constituents from the petitioned waste will be substantially
reduced so that short-term and long-term threats to human health and
the environment are minimized.
The DRAS results, which calculated the maximum allowable
concentration of chemical constituents in the spent carbon are
presented in Table 1. Based
[[Page 7708]]
on the comparison of the DRAS results and maximum TCLP concentrations
found in Table 1, the petitioned waste should be delisted because no
constituents of concern are likely to be present or formed as reaction
products or by products in Bayer's waste.
F. What sid EPA conclude about Bayer's analysis?
EPA concluded, after reviewing Bayer's processes that no other
hazardous constituents of concern, other than those for which Bayer
tested, are likely to be present or formed as reaction products or by-
products in Bayer's wastes. In addition, on the basis of explanations
and analytical data provided by Bayer, pursuant to Sec. 260.22, EPA
concludes that the petitioned waste, spent carbon, does not exhibit any
of the characteristics of ignitability, corrosivity, reactivity, or
toxicity. See Sec. Sec. 261.21, 261.22, 261.23, and 261.24
respectively.
G. What other factors did EPA consider in its evaluation?
During the evaluation of this petition, in addition to the
potential impacts to the ground water, EPA also considered the
potential impact of the petitioned waste via non-ground water exposure
routes (i.e., air emissions and surface runoff) for the spent carbon.
With regard to airborne dispersion in particular, EPA believes that
exposure to airborne contaminants from the petitioned waste is
unlikely. No appreciable air releases are likely from the spent carbon
under any likely disposal conditions. EPA evaluated the potential
hazards resulting from the unlikely scenario of airborne exposure to
hazardous constituents released from the waste water in an open
landfill. The results of this worst-case analysis indicated that there
is no substantial present or potential hazard to human health and the
environment from airborne exposure to constituents from the spent
carbon.
H. What is EPA's evaluation of this delisting petition?
The descriptions by Bayer of the hazardous waste process and
analytical characterization, with the proposed verification testing
requirements (as discussed later in this action), provide a reasonable
basis for EPA to grant the petition. The data submitted in support of
the petition show that constituents in the waste are below the maximum
allowable concentrations (See Table 1). EPA believes that the spent
carbon generated by Bayer contains hazardous constituents at levels
which will present minimal short-term and long-term threats from the
petitioned waste to human health and the environment.
Thus, EPA believes that it should grant to Bayer an exclusion from
the list of hazardous wastes for the spent carbon. EPA believes that
the data submitted in support of the petition show the Bayer's spent
carbon to be non-hazardous.
EPA has reviewed the sampling procedures used by Bayer and has
determined they satisfy EPA's criteria for collecting representative
samples of variable constituent concentrations in the spent carbon. The
data submitted in support of the petition show that constituents in
Bayer's wastes are presently below the compliance-point concentrations
used in the delisting decision-making process and would not pose a
substantial hazard to the environment and the public. EPA believes that
Bayer has successfully demonstrated that the spent carbon is non-
hazardous.
EPA, therefore, proposes to grant an exclusion to Bayer for the
spent carbon described in its September 2003 petition. EPA's decision
to exclude this waste is based on analysis performed on samples taken
of the spent carbon.
If EPA finalizes the proposed rule, EPA will no longer regulate
7,728 cubic yards/year of spent carbon from Bayer's Baytown facility
under parts 262 through 268 and the permitting standards of part 270.
IV. Next Steps
A. With what conditions must the petitioner comply?
The petitioner, Bayer, must comply with the requirements in 40 CFR
part 261, appendix IX, Table 2 as amended by this action. The text
below gives the rationale and details of those requirements.
(1) Delisting Levels
This paragraph provides the levels of constituent concentrations
for which Bayer must test in the spent carbon, below which these wastes
would be considered non-hazardous.
EPA selected the set of inorganic and organic constituents
specified in paragraph (1) and listed in 40 CFR part 261, appendix IX,
Table 2, based on information in the petition. EPA compiled the
inorganic and organic constituents list from descriptions of the
manufacturing process used by Bayer, previous test data provided for
the waste, and the respective health-based levels used in delisting
decision-making. These delisting levels correspond to the allowable
levels measured in the leachable concentrations of the spent carbon.
(2) Waste Holding and Handling
Waste classification as non-hazardous cannot begin until compliance
with the limits set in paragraph (1) has occurred for two consecutive
quarterly sampling events. For example, if Bayer is issued a final
exclusion in August, the first quarter samples are due in November and
the second quarter samples are due in February. If EPA deems that both
the first and second quarter samples (a total of four) meet all the
delisting limits, classification of the waste as non-hazardous can
begin in March. If constituent levels in any sample taken by Bayer
exceed any of the delisting levels set in paragraph (1), Bayer must:
(i) notify EPA in accordance with paragraph (6), and; (ii) manage and
dispose of the spent carbon as hazardous waste generated under Subtitle
C of RCRA.
(3) Verification Testing Requirements
Bayer must complete a verification testing program on the spent
carbon to assure that the wastes do not exceed the maximum levels
specified in paragraph (1). If EPA determines that the data collected
under this paragraph does not support the data provided in the
petition, the exclusion will not cover the tested waste. This
verification program operates on two levels.
The first part of the quarterly verification testing program
consists of testing a batch of spent carbon for specified indicator
parameters as described in paragraph (1). Each quarterly sampling event
will consist of at least two samples of the spent carbon. Levels of
constituents measured in the samples of the spent carbon that do not
exceed the levels set forth in paragraph (1) can be considered non-
hazardous after two consecutive quarters of sampling data meet the
levels listed in paragraph (1).
The second part of the verification testing program is the annual
testing of two representative composite samples of the spent carbon for
all constituents specified in paragraph (1).
If Bayer demonstrates for two consecutive quarters complete
attainment of all specified limits, then Bayer may request approval of
EPA to reduce the frequency of testing to annually. If, after review of
performance of the treatment system, EPA finds that annual testing is
adequately protective of human health and the environment, then EPA may
authorize Bayer to reduce the quarterly comprehensive sampling
frequency to an annual basis. If the annual testing of the wastes does
not meet the delisting levels in paragraph (1), Bayer must notify EPA
according to
[[Page 7709]]
the requirements in paragraph (6). EPA will then take the appropriate
actions necessary to protect human health and the environment as
described in paragraph (6). Bayer must provide sampling results that
support the rationale that the delisting exclusion should not be
withdrawn.
The exclusion is effective upon publication in the Federal Register
but the change in waste classification as ``non-hazardous'' cannot
begin until two consecutive quarters of verification sampling comply
with the levels specified in paragraph (1). The waste classification as
``non-hazardous'' is also not authorized, if Bayer fails to perform the
quarterly and yearly testing as specified herein. Should Bayer fail to
conduct the quarterly/yearly testing as specified herein, then disposal
of spent carbon as delisted waste may not occur in the following
quarter(s)/year(s) until Bayer obtains the written approval of EPA.
(4) Changes in Operating Conditions
Paragraph (4) would allow Bayer the flexibility of modifying its
processes (for example, changes in equipment or change in operating
conditions) to improve its treatment processes. However, Bayer must
prove the effectiveness of the modified process and request approval
from EPA. Bayer must manage wastes generated during the new process
demonstration as hazardous waste through verification sampling within
30 days of start-up.
(5) Data Submittals
To provide appropriate documentation that the Bayer facility is
correctly managing the spent carbon, Bayer must compile, summarize, and
keep delisting records on-site for a minimum of five years. It should
keep all analytical data obtained pursuant to paragraph (3), including
quality control information, for five years. Paragraph (5) requires
that Bayer furnish these data upon request for inspection by any
employee or representative of EPA or the State of Texas.
If the proposed exclusion is made final, then it will apply only to
7,728 cubic yards per calendar year of spent carbon generated at the
Bayer facility after successful verification testing.
EPA would require Bayer to submit additional verification data
under any of the following circumstances:
(a) If Bayer significantly alters the manufacturing process
treatment system except as described in paragraph (4).
(b) If Bayer uses any new manufacturing or production process(es),
or significantly changes the current process(es) described in its
petition; or
(c) If Bayer makes any changes that could affect the composition or
type of waste generated.
Bayer must submit a modification to the petition complete with full
sampling and analysis for circumstances where the waste volume changes
and/or additional waste codes are added to the waste stream. EPA will
publish an amendment to the exclusion if the changes are acceptable.
Bayer must manage waste volumes greater than 7,728 cubic yards of
spent carbon as hazardous waste until EPA grants a revised exclusion.
When this exclusion becomes final, the management by Bayer of the spent
carbon covered in this petition would be relieved from Subtitle C
jurisdiction. Bayer may not classify the waste as non-hazardous until
the revised exclusion is finalized.
(6) Reopener
The purpose of paragraph (6) is to require Bayer to disclose new or
different information related to a condition at the facility or
disposal of the waste, if it is pertinent to the delisting. Bayer must
also use this procedure if the waste sample in the annual testing fails
to meet the levels found in paragraph (1). This provision will allow
EPA to reevaluate the exclusion, if a source provides new or additional
information to EPA. EPA will evaluate the information on which it based
the decision to see if it is still correct or if circumstances have
changed so that the information is no longer correct or would cause EPA
to deny the petition, if presented.
This provision expressly requires Bayer to report differing site
conditions or assumptions used in the petition in addition to failure
to meet the annual testing conditions within 10 days of discovery. If
EPA discovers such information itself or from a third party, it can act
on it as appropriate. The language being proposed is similar to those
provisions found in RCRA regulations governing no-migration petitions
at Sec. 268.6.
It is EPA's position that it has the authority under RCRA and the
Administrative Procedures Act (APA), 5 U.S.C. 551 (1978) et seq., to
reopen a delisting decision. EPA may reopen a delisting decision when
it receives new information that calls into question the assumptions
underlying the delisting.
EPA believes a clear statement of its authority in delisting is
merited in light of EPA's experience. See the Federal Register notice
regarding Reynolds Metals Company at 62 FR 37694 (July 14, 1997) and 62
FR 63458 (December 1, 1997) where the delisted waste leached at greater
concentrations into the environment than the concentrations predicted
when conducting the TCLP, leading EPA to repeal the delisting. If an
immediate threat to human health and the environment presents itself,
EPA will continue to address these situations on a case-by-case basis.
Where necessary, EPA will make a good cause finding to justify
emergency rulemaking. See APA section 553 (b)(3)(B).
B. What happens, if Bayer violates the terms and conditions?
If Bayer violates the terms and conditions established in the
exclusion, EPA will start procedures to withdraw the exclusion. Where
there is an immediate threat to human health and the environment, EPA
will evaluate the need for enforcement activities on a case-by-case
basis. EPA expects Bayer to conduct the appropriate waste analysis and
comply with the criteria explained above in paragraph (1) of the
exclusion.
V. Public Comments
A. How may I as an interested party submit comments?
EPA is requesting public comments on this proposed decision. Please
send three copies of your comments. Send two copies to the Chief,
Corrective Action and Waste Minimization Section, Multimedia Permitting
and Planning Division, U. S. Environmental Protection Agency Region 6,
1445 Ross Avenue, Dallas, Texas 75202. Send a third copy to the
Industrial Hazardous Waste Permits Division, Technical Evaluation Team,
Texas Commission on Environmental Quality, P.O. Box 13087, Austin, TX
78711-3087. Identify your comments at the top with this regulatory
docket number: R6-TXDEL-FY06-Bayer-Spent Carbon. You may submit your
comments electronically to Michelle Peace at peace.michelle@epa.gov.
B. How may I review the docket or obtain copies of the proposed
exclusion?
You may review the RCRA regulatory docket for this proposed rule at
the U. S. Environmental Protection Agency Region 6, 1445 Ross Avenue,
Dallas, TX 75202. It is available for viewing in EPA Freedom of
Information Act Review Room from 9 a.m. to 4 p.m., Monday through
Friday, excluding Federal holidays. Call (214) 665-6444 for
appointments. The public may copy material from any regulatory docket
at no cost for the first 100 pages and at
[[Page 7710]]
fifteen cents per page for additional copies.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this rule is not of general applicability
and therefore is not a regulatory action subject to review by the
Office of Management and Budget (OMB). This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a
particular facility only. Because this rule is of particular
applicability relating to a particular facility, it is not subject to
the regulatory flexibility provisions of the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because
this rule will affect only a particular facility, it will not
significantly or uniquely affect small governments, as specified in
section 203 of UMRA. Because this rule will affect only a particular
facility, this proposed rule does not have federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132, ``Federalism,'' (64
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply
to this rule. Similarly, because this rule will affect only a
particular facility, this proposed rule does not have tribal
implications, as specified in Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments'' (65 FR 67249, November 9,
2000). Thus, Executive Order 13175 does not apply to this rule. This
rule also is not subject to Executive Order 13045, ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant as
defined in Executive Order 12866, and because the Agency does not have
reason to believe the environmental health or safety risks addressed by
this action present a disproportionate risk to children. The basis for
this belief is that the Agency used the DRAS program, which considers
health and safety risks to infants and children, to calculate the
maximum allowable concentrations for this rule. This rule is not
subject to Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866. This rule does not involve technical
standards; thus, the requirements of section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do
not apply. As required by section 3 of Executive Order 12988, ``Civil
Justice Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule,
EPA has taken the necessary steps to eliminate drafting errors and
ambiguity, minimize potential litigation, and provide a clear legal
standard for affected conduct. The Congressional Review Act, 5 U.S.C.
801 et seq., as added by the Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides that before a rule may take
effect, the agency promulgating the rule must submit a rule report
which includes a copy of the rule to each House of the Congress and to
the Comptroller General of the United States. Section 804 exempts from
section 801 the following types of rules (1) Rules of particular
applicability; (2) rules relating to agency management or personnel;
and (3) rules of agency organization, procedure, or practice that do
not substantially affect the rights or obligations of non-agency
parties 5 U.S.C. 804(3). EPA is not required to submit a rule report
regarding this action under section 801 because this is a rule of
particular applicability.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: February 3, 2006.
William Rhea,
Acting Director, Multimedia Planning and Permitting Division.
For the reasons set out in the preamble, 40 CFR part 261 is
proposed to be amended as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
2. In Table 2 of Appendix IX of Part 261 add the following waste
stream in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Waste Excluded Under Sec. Sec. 260.20 and
260.22
Table 2.--Waste Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste Description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Bayer Material Science....................... Baytown, TX..................... Spent Carbon (EPA Hazardous
Waste Numbers K027, K104,
K111, and K112) generated at a
maximum rate of 7,728 cubic
yards per calendar year after
[publication date of the final
rule].
For the exclusion to be valid,
Bayer must implement a
verification testing program
that meets the following
Paragraphs:
(1) Delisting Levels: All
concentrations for those
constituents must not exceed
the maximum allowable
concentrations in mg/l
specified in this paragraph.
Spent Carbon Leachable
Concentrations (mg/l):
Antimony-0.251; Arsenic-0.385,
Barium-8.93; Beryllium-0.953;
Cadmium-0.687; Chromium-5.0;
Cobalt-2.75; Copper-128.0;
Cyanide-1.65; Lead-5.0;
Mercury-0.0294; Nickel-3.45;
Selenium-0.266 ; Tin-2.75;
Vanadium-2.58; Zinc-34.2;
Aldrin-0.0000482; Acetophenone-
87.1; Aniline-2.82; Benzene--
0.554; Bis(2-
ethylhexyl)phthalate-0.342;
Benzyl alcohol-261;
Butylbenzylphthalate-3.54;
Chloroform-0.297; Di-n-octyl
phthalate-0.00427; 2,4-
Dinitrotoluene-0.0249; 2,6-
Dinitrotoluene-0.0249
Diphenylamine-1.43; 1,4-
Dioxane-14.6; Di-n-butyl
phthalate-2.02; Kepone-
0.000373; 2-Nitrophenol-87.9;
N-Nitrodiphenylamine-3.28;
Phenol-52.2; 2,4-
Toluenediamine-0.00502;
Toluene diisocyanate-0.001.
(2) Waste Holding and Handling:
(A) Waste classification as non-
hazardous can not begin until
compliance with the limits set
in paragraph (1) for spent
carbon has occurred for two
consecutive quarterly sampling
events.
[[Page 7711]]
(B) If constituent levels in
any sample taken by Bayer
exceed any of the delisting
levels set in paragraph (1)
for the spent carbon, Bayer
must do the following:
(i) Notify EPA in accordance
with paragraph (6) and
(ii) Manage and dispose the
spent carbon as hazardous
waste generated under Subtitle
C of RCRA.
(3) Testing Requirements:
Upon this exclusion becoming
final, Bayer may perform
quarterly analytical testing
by sampling and analyzing the
spent carbon as follows:
(A) Quarterly Testing:
(i) Collect two representative
composite samples of the spent
carbon at quarterly intervals
after EPA grants the final
exclusion. The first composite
samples may be taken at any
time after EPA grants the
final approval. Sampling
should be performed in
accordance with the sampling
plan approved by EPA in
support of the exclusion.
(ii) Analyze the samples for
all constituents listed in
paragraph (1). Any composite
sample taken that exceeds the
delisting levels listed in
paragraph (1) for the spent
carbon must be disposed as
hazardous waste in accordance
with the applicable hazardous
waste requirements.
(iii) Within thirty (30) days
after taking its first
quarterly sample, Bayer will
report its first quarterly
analytical test data to EPA.
If levels of constituents
measured in the samples of the
spent carbon do not exceed the
levels set forth in paragraph
(1) of this exclusion for two
consecutive quarters, Bayer
can manage and dispose the non-
hazardous spent carbon
according to all applicable
solid waste regulations.
(B) Annual Testing:
(i) If Bayer completes the
quarterly testing specified in
paragraph (3) above and no
sample contains a constituent
at a level which exceeds the
limits set forth in paragraph
(1), Bayer may begin annual
testing as follows: Bayer must
test two representative
composite samples of the spent
carbon for all constituents
listed in paragraph (1) at
least once per calendar year.
(ii) The samples for the annual
testing shall be a
representative composite
sample according to
appropriate methods. As
applicable to the method-
defined parameters of concern,
analyses requiring the use of
SW-846 methods incorporated by
reference in 40 CFR 260.11
must be used without
substitution. As applicable,
the SW-846 methods might
include Methods 0010, 0011,
0020, 0023A, 0030, 0031, 0040,
0050, 0051, 0060, 0061, 1010A,
1020B, 1110A, 1310B, 1311,
1312, 1320, 1330A, 9010C,
9012B, 9040C, 9045D, 9060A,
9070A (uses EPA Method 1664,
Rev. A), 9071B, and 9095B.
Methods must meet Performance
Based Measurement System
Criteria in which the Data
Quality Objectives are to
demonstrate that samples of
the Bayer spent carbon are
representative for all
constituents listed in
paragraph (1).
(iii) The samples for the
annual testing taken for the
second and subsequent annual
testing events shall be taken
within the same calendar month
as the first annual sample
taken.
(iv) The annual testing report
should include the total
amount of waste in cubic yards
disposed during the calendar
year.
(4) Changes in Operating
Conditions: If Bayer
significantly changes the
process described in its
petition or starts any
processes that generate(s) the
waste that may or could affect
the composition or type of
waste generated (by
i
