Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Final Exclusion, 10680-10685 [E9-5213]
Download as PDF
<![CDATA[
10680
Federal Register / Vol. 74, No. 47 / Thursday, March 12, 2009 / Rules and Regulations
Item/description of charges
Rate ($) Montreal to or
from Lake Ontario
(5 locks)
Rate ($) Welland Canal—Lake
Ontario to or from Lake Erie
(8 locks)
Column 1
Column 2
Column 3
3. Minimum charge per vessel per lock transited for full or partial transit of the Seaway.
4. A charge per pleasure craft per lock transited for full or partial transit of the Seaway, including applicable federal taxes 2.
6. Under the New Business Initiative Program, for cargo accepted as
New Business, a percentage rebate on the applicable cargo
charges for the approved period.
7. Under the Volume Rebate Incentive program, a retroactive percentage rebate on cargo tolls on the incremental volume calculated
based on the pre-approved maximum volume.
25.00 ..............................................
25.00.
25.00 3 ............................................
25.00.
20% ................................................
20%.
10% ................................................
10%.
1 Or
under the US GRT for ships prescribed prior to 2002.
applicable charge at the Saint Lawrence Seaway Development Corporation’s locks (Eisenhower, Snell) for pleasure craft is $30 U.S. or
$30 Canadian per lock. The applicable charge under item 3 at the Saint Lawrence Seaway Development Corporation’s locks (Eisenhower, Snell)
will be collected in U.S. dollars. The other amounts are in Canadian dollars and are for the Canadian share of tolls. The collection of the U.S.
portion of tolls for commercial vessels is waived by law (33 U.S.C. 998a(a)).
3 Pleasure craft rates-subject to change in subsequent years.
2 The
§ 402.6
[Redesignated as § 402.8]
10. Section 402.6 is redesignated as
§ 402.8 and amended by revising the
heading and paragraphs (a) and (b) to
read as follows:
■
§ 402.8 Post-clearance date operational
surcharges.
(a) Subject to paragraph (b) of this
section, a vessel that reports for its final
transit of the Seaway from a place set
out in column 1 of § 402.11 within a
period after the clearance date
established by the Manager and the
Corporation set out in column 2 of
402.11 shall pay operational surcharges
in the amount set out in column 3 of
402.11, prorated on a per-lock basis.
(b) If surcharges are postponed for
operational or climatic reasons, a vessel
that reports for its final transit of the
Seaway from a place set out in column
1 within a period after the clearance
date established by the Manager and the
Corporation set out in column 2 shall
pay operational surcharges in the
amount set out in column 3, prorated on
a per-lock basis.
*
*
*
*
*
■ 11. A new § 402.6 is added to read as
follows:
cprice-sewell on PRODPC61 with RULES
§ 402.6
(2) The shipper/receiver must already
move the commodity, as defined under
the Manager’s commodity classification,
through the Seaway at a minimum of
100,000 tonnes per season for the past
five navigation seasons.
(b) Once approved by the Manager,
the maximum volume will become the
basis on which to calculate the
incremental volume.
(c) The Volume Rebate Incentive
program is not accessible at the end of
the navigation season without a preapproved maximum volume within the
set deadline.
(d) The same cargo volume can only
be used by one shipper/receiver.
(e) For the Volume Rebate to be
applicable, the total volume of the
commodity shipped through the Seaway
must also increase during the navigation
season.
Issued at Washington, DC on March 2,
2009.
Saint Lawrence Seaway Development
Corporation.
Collister Johnson, Jr.,
Administrator.
[FR Doc. E9–4918 Filed 3–11–09; 8:45 am]
BILLING CODE 4910–61–P
Volume Rebate Incentive program
(a) To be eligible to the Volume
Rebate Incentive program:
(1) A shipper/receiver in the Great
lakes/St. Lawrence Seaway System must
submit to the Manager for approval,
before June 30th of every season, the
commodity, as defined under the
Manager’s commodity classification, for
which a Volume Rebate is sought, the
origin or destination of the commodity,
and a proof of the maximum volume of
the commodity the shipper/receiver has
shipped over the last 5 years from that
origin or to that destination.
VerDate Nov<24>2008
13:20 Mar 11, 2009
Jkt 217001
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
[EPA–R06–RCRA–2008–0418; SW–FRL–
8776–4]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste; Final Exclusion
AGENCY: Environmental Protection
Agency.
ACTION: Final rule.
PO 00000
Frm 00008
Fmt 4700
Sfmt 4700
SUMMARY: Environmental Protection
Agency (EPA) is granting a petition
submitted by Bayer Material Science in
Baytown, Texas to exclude (or delist)
the toluene diisocyanate (TDI) residues
generated from its facility located in
Baytown, Texas from the lists of
hazardous wastes. This final rule
responds to the petition submitted by
Bayer Material Science to delist K027
TDI residues generated from the
facility’s distillation units.
After careful analysis and use of the
Delisting Risk Assessment Software
(DRAS), EPA has concluded the
petitioned waste is not hazardous waste.
This exclusion applies to 9,780 cubic
yards per year of the K027 residues.
Accordingly, this final rule excludes the
petitioned waste from the requirements
of hazardous waste regulations under
the Resource Conservation and
Recovery Act (RCRA) when it is
disposed in a Subtitle D Landfill.
DATES: Effective Date: March 12, 2009.
ADDRESSES: The public docket for this
final rule is located at the
Environmental Protection Agency
Region 6, 1445 Ross Avenue, Dallas,
Texas 75202, and is available for
viewing in EPA Freedom of Information
Act review room on the 7th floor from
9 a.m. to 4 p.m., Monday through
Friday, excluding Federal holidays. Call
(214) 665–6444 for appointments. The
reference number for this docket is
EPA–R06–RCRA–2008–0418. The
public may copy material from any
regulatory docket at no cost for the first
100 pages and at a cost of $0.15 per page
for additional copies.
FOR FURTHER INFORMATION CONTACT: Ben
Banipal, Section Chief of the Corrective
Action and Waste Minimization
Section, Multimedia Planning and
Permitting Division (6PD–C),
E:\FR\FM\12MRR1.SGM
12MRR1
Federal Register / Vol. 74, No. 47 / Thursday, March 12, 2009 / Rules and Regulations
Environmental Protection Agency
Region 6, 1445 Ross Avenue, Dallas,
Texas 75202.
For technical information concerning
this notice, contact Michelle Peace,
Environmental Protection Agency
Region 6, 1445 Ross Avenue, (6PD–C),
Dallas, Texas 75202, at (214) 665–7430,
or peace.michelle@epa.gov.
SUPPLEMENTARY INFORMATION: The
information in this section is organized
as follows:
I. Overview Information
A. What action is EPA finalizing?
B. Why is EPA approving this action?
C. What are the limits of this exclusion?
D. How will Bayer Material Science
manage the waste, if it is delisted?
E. When is the final delisting exclusion
effective?
F. How does this final rule affect states?
II. Background
A. What is a delisting?
B. What regulations allow facilities to
delist a waste?
C. What information must the generator
supply?
III. EPA’s Evaluation of the Waste
Information and Data
A. What waste did Bayer Material Science
petition EPA to delist?
B. How much waste did Bayer Material
Science propose to delist?
C. How did Bayer Material Science sample
and analyze the waste data in this
petition?
IV. Public Comments Received on the
Proposed Exclusion
A. Who submitted comments on the
proposed rule?
B. What were the comments and what are
EPA’s responses to them?
V. Statutory and Executive Order Reviews
I. Overview Information
cprice-sewell on PRODPC61 with RULES
A. What action is EPA finalizing?
After evaluating the petition, EPA
proposed, on May 19, 2008, to exclude
the TDI residues from the lists of
hazardous waste under 40 CFR 261.31
and 261.32 (see 70 FR 41358). EPA is
finalizing the decision to grant Bayer
Material Science’s delisting petition to
have its TDI residues managed and
disposed as non-hazardous waste
provided certain verification and
monitoring conditions are met.
B. Why is EPA approving this action?
Bayer Material Science’s petition
requests a delisting from the K027 waste
listing under 40 CFR 260.20 and 260.22.
Bayer Material Science does not believe
that the petitioned waste meets the
criteria for which EPA listed it. Bayer
Material Science also believes no
additional constituents or factors could
cause the waste to be hazardous. EPA’s
review of this petition included
consideration of the original listing
criteria and the additional factors
VerDate Nov<24>2008
13:20 Mar 11, 2009
Jkt 217001
required by the Hazardous and Solid
Waste Amendments of 1984. See section
3001(f) of RCRA, 42 U.S.C. 6921(f), and
40 CFR 260.22 (d)(1)–(4) (hereinafter all
sectional references are to 40 CFR
unless otherwise indicated). In making
the final delisting determination, EPA
evaluated the petitioned waste against
the listing criteria and factors cited in
§ 261.11(a)(2) and (a)(3). Based on this
review, EPA agrees with the petitioner
that the waste is nonhazardous with
respect to the original listing criteria. If
EPA had found, based on this review,
that the waste remained hazardous
based on the factors for which the waste
as originally listed, EPA would have
proposed to deny the petition. EPA
evaluated the waste with respect to
other factors or criteria to assess
whether there is a reasonable basis to
believe that such additional factors
could cause the waste to be hazardous.
EPA considered whether the waste is
acutely toxic, the concentration of the
constituents in the waste, their tendency
to migrate and to bioaccumulate, their
persistence in the environment once
released from the waste, plausible and
specific types of management of the
petitioned waste, the quantities of waste
generated, and waste variability. EPA
believes that the petitioned waste does
not meet the listing criteria and thus
should not be a listed waste. EPA’s final
decision to delist waste from Bayer
Material Science’s facility is based on
the information submitted in support of
this rule, including descriptions of the
wastes and analytical data from the
Baytown, Texas facility.
C. What are the limits of this exclusion?
This exclusion applies to the waste
described in the petition only if the
requirements described in 40 CFR Part
261, Appendix IX, Table 2 and the
conditions contained herein are
satisfied.
D. How will Bayer Material Science
manage the waste, if it is delisted?
The TDI residues from Bayer Material
Science will be disposed of in a RCRA
Subtitle D landfill.
E. When is the final delisting exclusion
effective?
This rule is effective March 12, 2009.
The Hazardous and Solid Waste
Amendments of 1984 amended Section
3010 of RCRA, 42 U.S.C. 6930(b)(1),
allows rules to become effective less
than six months after the rule is
published when the regulated
community does not need the six-month
period to come into compliance. That is
the case here because this rule reduces,
rather than increases, the existing
PO 00000
Frm 00009
Fmt 4700
Sfmt 4700
10681
requirements for persons generating
hazardous waste. This reduction in
existing requirements also provides a
basis for making this rule effective
immediately, upon publication, under
the Administrative Procedure Act,
pursuant to 5 U.S.C. 553(d).
F. How does this final rule affect states?
Because EPA is issuing this exclusion
under the Federal RCRA delisting
program, only states subject to Federal
RCRA delisting provisions would be
affected. This would exclude states
which have received authorization from
EPA to make their own delisting
decisions.
EPA allows states to impose their own
non-RCRA regulatory requirements that
are more stringent than EPA’s, under
section 3009 of RCRA, 42 U.S.C. 6929.
These more stringent requirements may
include a provision that prohibits a
federally issued exclusion from taking
effect in the state. Because a dual system
(that is, both Federal (RCRA) and State
(non-RCRA) programs) may regulate a
petitioner’s waste, EPA urges petitioners
to contact the State regulatory authority
to establish the status of their wastes
under the State law.
EPA has also authorized some states
(for example, Louisiana, Oklahoma,
Georgia, and Illinois) to administer a
RCRA delisting program in place of the
Federal program; that is, to make state
delisting decisions. Therefore, this
exclusion does not apply in those
authorized states unless that state makes
the rule part of its authorized program.
If Bayer Material Science transports the
petitioned waste to or manages the
waste in any state with delisting
authorization, Bayer Material Science
must obtain delisting authorization from
that state before it can manage the waste
as non-hazardous in the state.
II. Background
A. What is a delisting petition?
A delisting petition is a request from
a generator to EPA, or another agency
with jurisdiction, to exclude or delist
from the RCRA list of hazardous waste,
certain wastes the generator believes
should not be considered hazardous
under RCRA.
B. What regulations allow facilities to
delist a waste?
Under §§ 260.20 and 260.22, facilities
may petition EPA to remove their
wastes from hazardous waste regulation
by excluding them from the lists of
hazardous wastes contained in
§§ 261.31 and 261.32. Specifically,
§ 260.20 allows any person to petition
the Administrator to modify or revoke
E:\FR\FM\12MRR1.SGM
12MRR1
10682
Federal Register / Vol. 74, No. 47 / Thursday, March 12, 2009 / Rules and Regulations
any provision of 40 CFR Parts 260
through 265 and 268. Section 260.22
provides generators the opportunity to
petition the Administrator to exclude a
waste from a particular generating
facility from the hazardous waste lists.
C. What information must the generator
supply?
Petitioners must provide sufficient
information to EPA to allow EPA to
determine that the waste to be excluded
does not meet any of the criteria under
which the waste was listed as a
hazardous waste. In addition, the
Administrator must determine, where
he/she has a reasonable basis to believe
that factors (including additional
constituents) other than those for which
the waste was listed could cause the
waste to be a hazardous waste and that
such factors do not warrant retaining the
waste as a hazardous waste.
III. EPA’s Evaluation of the Waste
Information and Data
A. What waste did Bayer Material
Science petition EPA to delist?
On September 2, 2004, Bayer
petitioned EPA to exclude from the lists
of hazardous waste contained in
§ 261.32, toluene diisocyanate (TDI)
residues generated from its facility
located in Baytown, Texas. The waste
falls under the classification of a listed
waste under § 261.30. The waste is
listed as K027 hazardous wastes. These
are centrifuge and distillation residues
from TDI production.
B. How much waste did Bayer Material
Science propose to delist?
Specifically, in its petition, Bayer
Material Science requested that EPA
grant a conditional exclusion for 9,780
cubic yards per year of TDI residues
resulting from the TDI production
processes at its facility.
cprice-sewell on PRODPC61 with RULES
C. How did Bayer Material Science
sample and analyze the waste data in
this petition?
To support its petition, Bayer Material
Science submitted:
• Analytical results of the toxicity
characteristic leaching procedure
(TCLP) and total constituent analysis for
volatile and semivolatile organics,
pesticides, herbicides, dioxins/furans,
PCBs and metals for five TDI samples;
• Analytical results from multiple pH
leaching of metals; and
• A description of the TDI production
process.
VerDate Nov<24>2008
13:20 Mar 11, 2009
Jkt 217001
IV. Public Comments Received on the
Proposed Exclusion
A. Who submitted comments on the
proposed rule?
There was one set of comments
submitted regarding this petition. The
commenter was an industry consultant
in the field of hazardous waste
recycling.
B. What were the comments and what
are EPA’s responses to them?
Comment 1: Is EPA aware of the fact
that mishandling of TDI waste bottoms
at a cement plant permitted to burn
hazardous waste resulted in a major
explosion and fire? Please see https://
www.ntsb.gov/Publictn/2001/
HZM0101.pdf for the DOT report on this
incident.
Response 1: The EPA reviewer was
not aware of the incident at the Essroc
Cement Corporation in 1999. The DOT
report identified has been reviewed. As
a result, EPA will require Bayer to
employ additional management
requirements to ensure that the residues
are offloaded safely and opportunities
for chemical self-reaction and expansion
are minimized.
Comment 2: Did EPA require the
petitioner to analyze samples of the
waste for phosgene? Is EPA aware of
how difficult it is to completely remove
this highly toxic compound from these
bottoms?
Response 2: No, EPA did not require
the samples to be analyzed for
phosgene. Phosgene is not included in
Appendix 9 of Part 264. EPA is aware
that complete removal of phosgene is
extremely difficult. However, Bayer
does use a process to remove TDI,
phosgene, and orthodichlorbenzene
from the residuals. Review of
compliance records did not indicate
issues that would suggest unsafe
handling of this highly toxic compound
has occurred at the Bayer facility.
Comment 3: Is EPA aware of the fact
that TDI bottoms are often water
reactive, potentially generating heat and
gas when in contact with water?
Response 3: Yes, EPA is aware that
TDI is water reactive and has a potential
to generate heat and gas when it
contacts water. However, EPA believes
that the amount of heat generated from
the TDI residuals will be minimal due
to the small amount of TDI remaining in
the residuals. Bayer uses an additional
reaction step to ensure that there is no
free TDI remaining in the residues,
which further alleviates the situation.
Comment 4: Did EPA require the
petitioner to submit tests demonstrating
that there was no TDI present in the
PO 00000
Frm 00010
Fmt 4700
Sfmt 4700
waste? Is EPA aware of the toxicity and
reactivity of TDI relative to this issue?
Response 4: The concentrations of
leachable TDI in the waste samples
analyzed were reported as non-detect at
concentrations less than 0.039 mg/l. As
a result of the comment made EPA has
added TDI to the list of constituents,
Bayer must monitor for and set the limit
of TDI as 0.039 mg/l.
Comment 5. Did EPA require the
petitioner to test the material for
residual orthodichlorobenzene and
evaluate the potential environmental
problems from releasing such a solvent
outside of hazardous waste regulations?
Response 5: Yes, the residuals were
tested for orthodichlorobenzene. The
potential for release was modeled using
the DRAS software. The total
constituent analysis detected this waste
in concentration of 10 mg/kg; the
leachable concentration was less than
0.001 mg/l. The delisting limit is 9.72
mg/l. This limit will be added to the list
of constituents Bayer must monitor for
the TDI residue prior to disposal.
Comment 6. Is EPA aware of the fact
that TDI itself can dimerize leading to
the release of CO2 and potential build
up of pressure in confined tanks,
especially upon heating? Given the
history of the very large explosion at the
Essroc cement plant in Indiana that
resulted from mishandling this
hazardous waste the commenter
believes that it is imperative that EPA
make absolutely certain that the
material proposed for delisting does not
have any of the hazardous
characteristics (not EPA definition
hazardous—but real hazardous in a real
world setting) that resulted in the
massive explosion and fire at the
Indiana plant.
Response 6: The disposal scenario for
the Bayer TDI residue is not associated
with combustion as detailed in the
Essroc Cement incident because this
TDI residue is only delisted if and when
it meets the delisting limits and is
disposed in a Subtitle D landfill. In light
of the information presented by this
commenter, EPA has required that prior
to its disposal, Bayer handle the
material safely to prevent its contact
with water and to continue to minimize
the possibility of significant amounts of
free TDI in the residue. As stated above,
Bayer employs an additional reaction
step to ensure that free TDI, phosgene,
and ortho-dichlorobenzene are
minimized. Therefore, the Agency does
not believe that the allowable
concentrations of TDI remaining in the
waste will pose a significant risk when
disposed in a Subtitle D landfill.
E:\FR\FM\12MRR1.SGM
12MRR1
Federal Register / Vol. 74, No. 47 / Thursday, March 12, 2009 / Rules and Regulations
V. Statutory and Executive Order
Reviews
Under Executive Order 12866,
‘‘Regulatory Planning and Review’’ (58
FR 51735, October 4, 1993), this rule is
not of general applicability and
therefore is not a regulatory action
subject to review by the Office of
Management and Budget (OMB). This
rule does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.) because it
applies to a particular facility only.
Because this rule is of particular
applicability relating to a particular
facility, it is not subject to the regulatory
flexibility provisions of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), or
to sections 202, 204, and 205 of the
Unfunded Mandates Reform Act of 1995
(UMRA) (Pub. L. 104–4). Because this
rule will affect only a particular facility,
it will not significantly or uniquely
affect small governments, as specified in
section 203 of UMRA. Because this rule
will affect only a particular facility, this
final rule does not have federalism
implications. It will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132, ‘‘Federalism’’,
(64 FR 43255, August 10, 1999). Thus,
Executive Order 13132 does not apply
to this rule. Similarly, because this rule
will affect only a particular facility, this
final rule does not have tribal
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
10683
promulgating the rule must submit a
rule report which includes a copy of the
rule to each House of the Congress and
to the Comptroller General of the United
States. Section 804 exempts from
section 801 the following types of rules:
(1) Rules of particular applicability; (2)
rules relating to agency management or
personnel; and (3) rules of agency
organization, procedure, or practice that
do not substantially affect the rights or
obligations of non-agency parties 5
U.S.C. 804(3). EPA is not required to
submit a rule report regarding today’s
action under section 801 because this is
a rule of particular applicability.
Lists of Subjects in 40 CFR Part 261
Environmental protection, Hazardous
waste, Recycling, Reporting and
recordkeeping requirements.
Authority: 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: January 20, 2009.
Carl E. Edlund,
Director, Multimedia Planning and Permitting
Division.
For the reasons set out in the
preamble, 40 CFR part 261 is 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
Facility
cprice-sewell on PRODPC61 with RULES
*
*
Bayer Material Science LLC ......
VerDate Nov<24>2008
13:20 Mar 11, 2009
Address
Waste description
*
*
*
*
*
Baytown, TX ..... Toluene Diisocyanate (TDI) Residue (EPA Hazardous Waste No. K027) generated at a
maximum rate of 9,780 cubic yards per calendar year after March 12, 2009.
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.
TDI Residue Leachable Concentrations (mg/l): Arsenic—0.10, Barium—36.0;
Chloromethane—6.06; Chromium—2.27; Cobalt—13.6; Copper—25.9; Cyanide—3.08;
Dichlorophenoxyacetic acid—1.08; Diethyl phthalate—1000.0; Endrin—0.02; Lead—
0.702; Nickel—13.5; ortho-dichlorobenzene—9.72; Selenium—0.89; Tin—22.5; Vanadium—0.976; Zinc—197.0; 2,4-Toluenediamine—0.0459; Toluene Diisocyanate—0.039.
(2) Waste Holding and Handling:
(A) Bayer must manage the TDI residue in a manner to ensure that the residues are
offloaded safely and opportunities for chemical self-reaction and expansion are minimized. The TDI residue must be handled to ensure that contact with water is minimized.
(B) Waste classification as non-hazardous cannot begin until compliance with the limits set
in paragraph (1) for the TDI residue has occurred for two consecutive quarterly sampling
events and the reports have been approved by EPA.
Jkt 217001
PO 00000
Frm 00011
Fmt 4700
Sfmt 4700
E:\FR\FM\12MRR1.SGM
12MRR1
10684
Federal Register / Vol. 74, No. 47 / Thursday, March 12, 2009 / Rules and Regulations
TABLE 2—WASTE EXCLUDED FROM SPECIFIC SOURCES—Continued
cprice-sewell on PRODPC61 with RULES
Facility
Address
Waste description
(C) If constituent levels in any sample taken by Bayer exceed any of the delisting levels set
in paragraph (1) for the TDI residue, Bayer must do the following:
(i) notify EPA in accordance with paragraph (6) and
(ii) manage and dispose the TDI residue as hazardous waste generated under Subtitle C
of RCRA.
(3) Testing Requirements:
Upon this exclusion becoming final, Bayer must perform quarterly analytical testing by
sampling and analyzing the TDI residue as follows:
(A) Quarterly Testing:
(i) Collect two representative composite samples of the TDI residue 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 TDI residue 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 TDI residue 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 TDI residue according to all applicable solid waste regulations.
(B) Annual Testing:
(i) If Bayer completes the quarterly testing specified in paragraph (3) above and no sample
contains a constituent at a level which exceeds the limits set forth in paragraph (1),
Bayer can begin annual testing as follows: Bayer must test two representative composite
samples of the TDI residue for all constituents listed in paragraph (1) at least once per
calendar year.
(ii) The samples for the annual testing shall be a representative composite sample according to appropriate methods. As applicable to the method-defined parameters of concern,
analyses requiring the use of SW–846 methods incorporated by reference in 40 CFR
260.11 must be used without substitution. As applicable, the SW–846 methods might include Methods 0010, 0011, 0020, 0023A, 0030, 0031, 0040, 0050, 0051, 0060, 0061,
1010A, 1020B, 1110A, 1310B, 1311, 1312, 1320, 1330A, 9010C, 9012B, 9040C, 9045D,
9060A, 9070A (uses EPA Method 1664, Rev. A), 9071B, and 9095B. Methods must
meet Performance Based Measurement System Criteria in which the Data Quality Objectives are to demonstrate that samples of the Bayer spent carbon are representative for
all constituents listed in paragraph (1).
(iii) The samples for the annual testing taken for the second and subsequent annual testing
events shall be taken within the same calendar month as the first annual sample taken.
(iv) The annual testing report must include the total amount of waste in cubic yards disposed during the calendar year.
(4) Changes in Operating Conditions:
If Bayer significantly changes the process described in its petition or starts any process
that generates the waste that may or could affect the composition or type of waste generated (by illustration, but not limitation, changes in equipment or operating conditions of
the treatment process), it must notify EPA in writing and it may no longer handle the
wastes generated from the new process as non-hazardous until the wastes meet the
delisting levels set in paragraph (1) and it has received written approval to do so from
EPA.
Bayer must submit a modification to the petition complete with full sampling and analysis
for circumstances where the waste volume changes and/or additional waste codes are
added to the waste stream.
(5) Data Submittals:
Bayer must submit the information described below. If Bayer fails to submit the required
data within the specified time or maintain the required records on-site for the specified
time, EPA, at its discretion, will consider this sufficient basis to reopen the exclusion as
described in paragraph (6). Bayer must:
(A) Submit the data obtained through paragraph 3 to the Chief, Corrective Action and
Waste Minimization Section, Multimedia Planning and Permitting Division, U.S. Environmental Protection Agency Region 6, 1445 Ross Ave., Dallas, Texas 75202, within the
time specified. All supporting data can be submitted on CD–ROM or some comparable
electronic media.
(B) Compile records of analytical data from paragraph (3), summarized, and maintained
on-site for a minimum of five years.
(C) Furnish these records and data when either EPA or the State of Texas requests them
for inspection.
VerDate Nov<24>2008
13:20 Mar 11, 2009
Jkt 217001
PO 00000
Frm 00012
Fmt 4700
Sfmt 4700
E:\FR\FM\12MRR1.SGM
12MRR1
10685
Federal Register / Vol. 74, No. 47 / Thursday, March 12, 2009 / Rules and Regulations
TABLE 2—WASTE EXCLUDED FROM SPECIFIC SOURCES—Continued
Facility
Address
Waste description
(D) Send along with all data a signed copy of the following certification statement, to attest
to the truth and accuracy of the data submitted. ‘‘Under civil and criminal penalty of law
for the making or submission of false or fraudulent statements or representations (pursuant to the applicable provisions of the Federal Code, which include, but may not be limited to, 18 U.S.C. 1001 and 42 U.S.C. 6928), I certify that the information contained in or
accompanying this document is true, accurate and complete.
As to the (those) identified section(s) of this document for which I cannot personally verify
its (their) truth and accuracy, I certify as the company official having supervisory responsibility for the persons who, acting under my direct instructions, made the verification that
this information is true, accurate and complete.
If any of this information is determined by EPA in its sole discretion to be false, inaccurate
or incomplete, and upon conveyance of this fact to the company, I recognize and agree
that this exclusion of waste will be void as if it never had effect or to the extent directed
by EPA and that the company will be liable for any actions taken in contravention of the
company’s RCRA and CERCLA obligations premised upon the company’s reliance on
the void exclusion.’’
(6) Reopener:
(A) If, anytime after disposal of the delisted waste Bayer possesses or is otherwise made
aware of any environmental data (including but not limited to leachate data or ground
water monitoring data) or any other data relevant to the delisted waste indicating that
any constituent identified for the delisting verification testing is at a level higher than the
delisting level allowed by EPA in granting the petition, then the facility must report the
data, in writing, to EPA within 10 days of first possessing or being made aware of that
data.
(B) If either the quarterly or annual testing of the waste does not meet the delisting requirements in paragraph 1, Bayer must report the data, in writing, to EPA within 10 days of
first possessing or being made aware of that data.
(C) If Bayer fails to submit the information described in paragraphs (5), (6)(A) or (6)(B) or if
any other information is received from any source, EPA will make a preliminary determination as to whether the reported information requires action to protect human health
and/or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate response necessary to protect human health and the environment.
(D) If EPA determines that the reported information requires action, EPA will notify the facility in writing of the actions it believes are necessary to protect human health and the
environment. The notice shall include a statement of the proposed action and a statement providing the facility with an opportunity to present information explaining why the
proposed EPA action is not necessary. The facility shall have 10 days from the date of
EPA’s notice to present such information.
(E) Following the receipt of information from the facility described in paragraph (6)(D) or (if
no information is presented under paragraph (6)(D)) the initial receipt of information described in paragraphs (5), (6)(A) or (6)(B), EPA will issue a final written determination
describing the actions that are necessary to protect human health and/or the environment. Any required action described in EPA’s determination shall become effective immediately, unless EPA provides otherwise.
(7) Notification Requirements
Bayer must do the following before transporting the delisted waste. Failure to provide this
notification will result in a violation of the delisting petition and a possible revocation of
the decision.
(A) Provide a one-time written notification to any state Regulatory Agency to which or
through which it will transport the delisted waste described above for disposal, 60 days
before beginning such activities.
(B) Update the one-time written notification if it ships the delisted waste into a different disposal facility.
(C) Failure to provide this notification will result in a violation of the delisting variance and a
possible revocation of the decision.
*
*
*
*
*
*
[FR Doc. E9–5213 Filed 3–11–09; 8:45 am]
cprice-sewell on PRODPC61 with RULES
BILLING CODE 6560–50–P
VerDate Nov<24>2008
13:20 Mar 11, 2009
Jkt 217001
PO 00000
Frm 00013
Fmt 4700
Sfmt 4700
E:\FR\FM\12MRR1.SGM
12MRR1
*
]]>Agencies
[Federal Register Volume 74, Number 47 (Thursday, March 12, 2009)]
[Rules and Regulations]
[Pages 10680-10685]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-5213]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R06-RCRA-2008-0418; SW-FRL-8776-4]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Final Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Environmental Protection Agency (EPA) is granting a petition
submitted by Bayer Material Science in Baytown, Texas to exclude (or
delist) the toluene diisocyanate (TDI) residues generated from its
facility located in Baytown, Texas from the lists of hazardous wastes.
This final rule responds to the petition submitted by Bayer Material
Science to delist K027 TDI residues generated from the facility's
distillation units.
After careful analysis and use of the Delisting Risk Assessment
Software (DRAS), EPA has concluded the petitioned waste is not
hazardous waste. This exclusion applies to 9,780 cubic yards per year
of the K027 residues. Accordingly, this final rule excludes the
petitioned waste from the requirements of hazardous waste regulations
under the Resource Conservation and Recovery Act (RCRA) when it is
disposed in a Subtitle D Landfill.
DATES: Effective Date: March 12, 2009.
ADDRESSES: The public docket for this final rule is located at the
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas,
Texas 75202, and is available for viewing in EPA Freedom of Information
Act review room on the 7th floor from 9 a.m. to 4 p.m., Monday through
Friday, excluding Federal holidays. Call (214) 665-6444 for
appointments. The reference number for this docket is EPA-R06-RCRA-
2008-0418. The public may copy material from any regulatory docket at
no cost for the first 100 pages and at a cost of $0.15 per page for
additional copies.
FOR FURTHER INFORMATION CONTACT: Ben Banipal, Section Chief of the
Corrective Action and Waste Minimization Section, Multimedia Planning
and Permitting Division (6PD-C),
[[Page 10681]]
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas,
Texas 75202.
For technical information concerning this notice, contact Michelle
Peace, Environmental Protection Agency Region 6, 1445 Ross Avenue,
(6PD-C), Dallas, Texas 75202, at (214) 665-7430, or
peace.michelle@epa.gov.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What action is EPA finalizing?
B. Why is EPA approving this action?
C. What are the limits of this exclusion?
D. How will Bayer Material Science manage the waste, if it is
delisted?
E. When is the final delisting exclusion effective?
F. How does this final rule affect states?
II. Background
A. What is a delisting?
B. What regulations allow facilities to delist a waste?
C. What information must the generator supply?
III. EPA's Evaluation of the Waste Information and Data
A. What waste did Bayer Material Science petition EPA to delist?
B. How much waste did Bayer Material Science propose to delist?
C. How did Bayer Material Science sample and analyze the waste
data in this petition?
IV. Public Comments Received on the Proposed Exclusion
A. Who submitted comments on the proposed rule?
B. What were the comments and what are EPA's responses to them?
V. Statutory and Executive Order Reviews
I. Overview Information
A. What action is EPA finalizing?
After evaluating the petition, EPA proposed, on May 19, 2008, to
exclude the TDI residues from the lists of hazardous waste under 40 CFR
261.31 and 261.32 (see 70 FR 41358). EPA is finalizing the decision to
grant Bayer Material Science's delisting petition to have its TDI
residues managed and disposed as non-hazardous waste provided certain
verification and monitoring conditions are met.
B. Why is EPA approving this action?
Bayer Material Science's petition requests a delisting from the
K027 waste listing under 40 CFR 260.20 and 260.22. Bayer Material
Science does not believe that the petitioned waste meets the criteria
for which EPA listed it. Bayer Material Science also believes no
additional constituents or factors could cause the waste to be
hazardous. EPA's review of this petition included consideration of the
original listing criteria and the additional factors required by the
Hazardous and Solid Waste Amendments of 1984. See section 3001(f) of
RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4) (hereinafter all
sectional references are to 40 CFR unless otherwise indicated). In
making the final delisting determination, EPA evaluated the petitioned
waste against the listing criteria and factors cited in Sec.
261.11(a)(2) and (a)(3). Based on this review, EPA agrees with the
petitioner that the waste is nonhazardous with respect to the original
listing criteria. If EPA had found, based on this review, that the
waste remained hazardous based on the factors for which the waste as
originally listed, EPA would have proposed to deny the petition. EPA
evaluated the waste with respect to other factors or criteria to assess
whether there is a reasonable basis to believe that such additional
factors could cause the waste to be hazardous. EPA considered whether
the waste is acutely toxic, the concentration of the constituents in
the waste, their tendency to migrate and to bioaccumulate, their
persistence in the environment once released from the waste, plausible
and specific types of management of the petitioned waste, the
quantities of waste generated, and waste variability. EPA believes that
the petitioned waste does not meet the listing criteria and thus should
not be a listed waste. EPA's final decision to delist waste from Bayer
Material Science's facility is based on the information submitted in
support of this rule, including descriptions of the wastes and
analytical data from the Baytown, Texas facility.
C. What are the limits of this exclusion?
This exclusion applies to the waste described in the petition only
if the requirements described in 40 CFR Part 261, Appendix IX, Table 2
and the conditions contained herein are satisfied.
D. How will Bayer Material Science manage the waste, if it is delisted?
The TDI residues from Bayer Material Science will be disposed of in
a RCRA Subtitle D landfill.
E. When is the final delisting exclusion effective?
This rule is effective March 12, 2009. The Hazardous and Solid
Waste Amendments of 1984 amended Section 3010 of RCRA, 42 U.S.C.
6930(b)(1), allows rules to become effective less than six months after
the rule is published when the regulated community does not need the
six-month period to come into compliance. That is the case here because
this rule reduces, rather than increases, the existing requirements for
persons generating hazardous waste. This reduction in existing
requirements also provides a basis for making this rule effective
immediately, upon publication, under the Administrative Procedure Act,
pursuant to 5 U.S.C. 553(d).
F. How does this final rule affect states?
Because EPA is issuing this exclusion under the Federal RCRA
delisting program, only states subject to Federal RCRA delisting
provisions would be affected. This would exclude states which have
received authorization from EPA to make their own delisting decisions.
EPA allows states to impose their own non-RCRA regulatory
requirements that are more stringent than EPA's, under section 3009 of
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a
provision that prohibits a federally issued exclusion from taking
effect in the state. Because a dual system (that is, both Federal
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's
waste, EPA urges petitioners to contact the State regulatory authority
to establish the status of their wastes under the State law.
EPA has also authorized some states (for example, Louisiana,
Oklahoma, Georgia, and Illinois) to administer a RCRA delisting program
in place of the Federal program; that is, to make state delisting
decisions. Therefore, this exclusion does not apply in those authorized
states unless that state makes the rule part of its authorized program.
If Bayer Material Science transports the petitioned waste to or manages
the waste in any state with delisting authorization, Bayer Material
Science must obtain delisting authorization from that state before it
can manage the waste as non-hazardous in the state.
II. Background
A. What is a delisting petition?
A delisting petition is a request from a generator to EPA, or
another agency with jurisdiction, to exclude or delist from the RCRA
list of hazardous waste, certain wastes the generator believes should
not be considered hazardous under RCRA.
B. What regulations allow facilities to delist a waste?
Under Sec. Sec. 260.20 and 260.22, facilities may petition EPA to
remove their wastes from hazardous waste regulation by excluding them
from the lists of hazardous wastes contained in Sec. Sec. 261.31 and
261.32. Specifically, Sec. 260.20 allows any person to petition the
Administrator to modify or revoke
[[Page 10682]]
any provision of 40 CFR Parts 260 through 265 and 268. Section 260.22
provides generators the opportunity to petition the Administrator to
exclude a waste from a particular generating facility from the
hazardous waste lists.
C. What information must the generator supply?
Petitioners must provide sufficient information to EPA to allow EPA
to determine that the waste to be excluded does not meet any of the
criteria under which the waste was listed as a hazardous waste. In
addition, the Administrator must determine, where he/she has a
reasonable basis to believe that factors (including additional
constituents) other than those for which the waste was listed could
cause the waste to be a hazardous waste and that such factors do not
warrant retaining the waste as a hazardous waste.
III. EPA's Evaluation of the Waste Information and Data
A. What waste did Bayer Material Science petition EPA to delist?
On September 2, 2004, Bayer petitioned EPA to exclude from the
lists of hazardous waste contained in Sec. 261.32, toluene
diisocyanate (TDI) residues generated from its facility located in
Baytown, Texas. The waste falls under the classification of a listed
waste under Sec. 261.30. The waste is listed as K027 hazardous wastes.
These are centrifuge and distillation residues from TDI production.
B. How much waste did Bayer Material Science propose to delist?
Specifically, in its petition, Bayer Material Science requested
that EPA grant a conditional exclusion for 9,780 cubic yards per year
of TDI residues resulting from the TDI production processes at its
facility.
C. How did Bayer Material Science sample and analyze the waste data in
this petition?
To support its petition, Bayer Material Science submitted:
Analytical results of the toxicity characteristic leaching
procedure (TCLP) and total constituent analysis for volatile and
semivolatile organics, pesticides, herbicides, dioxins/furans, PCBs and
metals for five TDI samples;
Analytical results from multiple pH leaching of metals;
and
A description of the TDI production process.
IV. Public Comments Received on the Proposed Exclusion
A. Who submitted comments on the proposed rule?
There was one set of comments submitted regarding this petition.
The commenter was an industry consultant in the field of hazardous
waste recycling.
B. What were the comments and what are EPA's responses to them?
Comment 1: Is EPA aware of the fact that mishandling of TDI waste
bottoms at a cement plant permitted to burn hazardous waste resulted in
a major explosion and fire? Please see https://www.ntsb.gov/Publictn/
2001/HZM0101.pdf for the DOT report on this incident.
Response 1: The EPA reviewer was not aware of the incident at the
Essroc Cement Corporation in 1999. The DOT report identified has been
reviewed. As a result, EPA will require Bayer to employ additional
management requirements to ensure that the residues are offloaded
safely and opportunities for chemical self-reaction and expansion are
minimized.
Comment 2: Did EPA require the petitioner to analyze samples of the
waste for phosgene? Is EPA aware of how difficult it is to completely
remove this highly toxic compound from these bottoms?
Response 2: No, EPA did not require the samples to be analyzed for
phosgene. Phosgene is not included in Appendix 9 of Part 264. EPA is
aware that complete removal of phosgene is extremely difficult.
However, Bayer does use a process to remove TDI, phosgene, and
orthodichlorbenzene from the residuals. Review of compliance records
did not indicate issues that would suggest unsafe handling of this
highly toxic compound has occurred at the Bayer facility.
Comment 3: Is EPA aware of the fact that TDI bottoms are often
water reactive, potentially generating heat and gas when in contact
with water?
Response 3: Yes, EPA is aware that TDI is water reactive and has a
potential to generate heat and gas when it contacts water. However, EPA
believes that the amount of heat generated from the TDI residuals will
be minimal due to the small amount of TDI remaining in the residuals.
Bayer uses an additional reaction step to ensure that there is no free
TDI remaining in the residues, which further alleviates the situation.
Comment 4: Did EPA require the petitioner to submit tests
demonstrating that there was no TDI present in the waste? Is EPA aware
of the toxicity and reactivity of TDI relative to this issue?
Response 4: The concentrations of leachable TDI in the waste
samples analyzed were reported as non-detect at concentrations less
than 0.039 mg/l. As a result of the comment made EPA has added TDI to
the list of constituents, Bayer must monitor for and set the limit of
TDI as 0.039 mg/l.
Comment 5. Did EPA require the petitioner to test the material for
residual orthodichlorobenzene and evaluate the potential environmental
problems from releasing such a solvent outside of hazardous waste
regulations?
Response 5: Yes, the residuals were tested for
orthodichlorobenzene. The potential for release was modeled using the
DRAS software. The total constituent analysis detected this waste in
concentration of 10 mg/kg; the leachable concentration was less than
0.001 mg/l. The delisting limit is 9.72 mg/l. This limit will be added
to the list of constituents Bayer must monitor for the TDI residue
prior to disposal.
Comment 6. Is EPA aware of the fact that TDI itself can dimerize
leading to the release of CO2 and potential build up of
pressure in confined tanks, especially upon heating? Given the history
of the very large explosion at the Essroc cement plant in Indiana that
resulted from mishandling this hazardous waste the commenter believes
that it is imperative that EPA make absolutely certain that the
material proposed for delisting does not have any of the hazardous
characteristics (not EPA definition hazardous--but real hazardous in a
real world setting) that resulted in the massive explosion and fire at
the Indiana plant.
Response 6: The disposal scenario for the Bayer TDI residue is not
associated with combustion as detailed in the Essroc Cement incident
because this TDI residue is only delisted if and when it meets the
delisting limits and is disposed in a Subtitle D landfill. In light of
the information presented by this commenter, EPA has required that
prior to its disposal, Bayer handle the material safely to prevent its
contact with water and to continue to minimize the possibility of
significant amounts of free TDI in the residue. As stated above, Bayer
employs an additional reaction step to ensure that free TDI, phosgene,
and ortho-dichlorobenzene are minimized. Therefore, the Agency does not
believe that the allowable concentrations of TDI remaining in the waste
will pose a significant risk when disposed in a Subtitle D landfill.
[[Page 10683]]
V. Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this rule is not of general applicability
and therefore is not a regulatory action subject to review by the
Office of Management and Budget (OMB). This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a
particular facility only. Because this rule is of particular
applicability relating to a particular facility, it is not subject to
the regulatory flexibility provisions of the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because
this rule will affect only a particular facility, it will not
significantly or uniquely affect small governments, as specified in
section 203 of UMRA. Because this rule will affect only a particular
facility, this final rule does not have federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132, ``Federalism'', (64
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply
to this rule. Similarly, because this rule will affect only a
particular facility, this final rule does not have tribal implications,
as specified in Executive Order 13175, ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000). Thus,
Executive Order 13175 does not apply to this rule. This rule also is
not subject to Executive Order 13045, ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), because it is not economically significant as defined in
Executive Order 12866, and because the Agency does not have reason to
believe the environmental health or safety risks addressed by this
action present a disproportionate risk to children. The basis for this
belief is that the Agency used the DRAS program, which considers health
and safety risks to infants and children, to calculate the maximum
allowable concentrations for this rule. This rule is not subject to
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866. This rule does not involve technical
standards; thus, the requirements of section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do
not apply. As required by section 3 of Executive Order 12988, ``Civil
Justice Reform'', (61 FR 4729, February 7, 1996), in issuing this rule,
EPA has taken the necessary steps to eliminate drafting errors and
ambiguity, minimize potential litigation, and provide a clear legal
standard for affected conduct. The Congressional Review Act, 5 U.S.C.
801 et seq., as added by the Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides that before a rule may take
effect, the agency promulgating the rule must submit a rule report
which includes a copy of the rule to each House of the Congress and to
the Comptroller General of the United States. Section 804 exempts from
section 801 the following types of rules: (1) Rules of particular
applicability; (2) rules relating to agency management or personnel;
and (3) rules of agency organization, procedure, or practice that do
not substantially affect the rights or obligations of non-agency
parties 5 U.S.C. 804(3). EPA is not required to submit a rule report
regarding today's action under section 801 because this is a rule of
particular applicability.
Lists of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Authority: 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: January 20, 2009.
Carl E. Edlund,
Director, Multimedia Planning and Permitting Division.
0
For the reasons set out in the preamble, 40 CFR part 261 is amended as
follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
0
1. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
0
2. In 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 LLC................ Baytown, TX............ Toluene Diisocyanate (TDI) Residue (EPA
Hazardous Waste No. K027) generated at a
maximum rate of 9,780 cubic yards per
calendar year after March 12, 2009.
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.
TDI Residue Leachable Concentrations (mg/
l): Arsenic--0.10, Barium--36.0;
Chloromethane--6.06; Chromium--2.27;
Cobalt--13.6; Copper--25.9; Cyanide--3.08;
Dichlorophenoxyacetic acid--1.08; Diethyl
phthalate--1000.0; Endrin--0.02; Lead--
0.702; Nickel--13.5; ortho-
dichlorobenzene--9.72; Selenium--0.89;
Tin--22.5; Vanadium--0.976; Zinc--197.0;
2,4-Toluenediamine--0.0459; Toluene
Diisocyanate--0.039.
(2) Waste Holding and Handling:
(A) Bayer must manage the TDI residue in a
manner to ensure that the residues are
offloaded safely and opportunities for
chemical self-reaction and expansion are
minimized. The TDI residue must be handled
to ensure that contact with water is
minimized.
(B) Waste classification as non-hazardous
cannot begin until compliance with the
limits set in paragraph (1) for the TDI
residue has occurred for two consecutive
quarterly sampling events and the reports
have been approved by EPA.
[[Page 10684]]
(C) If constituent levels in any sample
taken by Bayer exceed any of the delisting
levels set in paragraph (1) for the TDI
residue, Bayer must do the following:
(i) notify EPA in accordance with paragraph
(6) and
(ii) manage and dispose the TDI residue as
hazardous waste generated under Subtitle C
of RCRA.
(3) Testing Requirements:
Upon this exclusion becoming final, Bayer
must perform quarterly analytical testing
by sampling and analyzing the TDI residue
as follows:
(A) Quarterly Testing:
(i) Collect two representative composite
samples of the TDI residue 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 TDI residue 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 TDI residue
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 TDI residue
according to all applicable solid waste
regulations.
(B) Annual Testing:
(i) If Bayer completes the quarterly
testing specified in paragraph (3) above
and no sample contains a constituent at a
level which exceeds the limits set forth
in paragraph (1), Bayer can begin annual
testing as follows: Bayer must test two
representative composite samples of the
TDI residue for all constituents listed in
paragraph (1) at least once per calendar
year.
(ii) The samples for the annual testing
shall be a representative composite sample
according to appropriate methods. As
applicable to the method-defined
parameters of concern, analyses requiring
the use of SW-846 methods incorporated by
reference in 40 CFR 260.11 must be used
without substitution. As applicable, the
SW-846 methods might include Methods 0010,
0011, 0020, 0023A, 0030, 0031, 0040, 0050,
0051, 0060, 0061, 1010A, 1020B, 1110A,
1310B, 1311, 1312, 1320, 1330A, 9010C,
9012B, 9040C, 9045D, 9060A, 9070A (uses
EPA Method 1664, Rev. A), 9071B, and
9095B. Methods must meet Performance Based
Measurement System Criteria in which the
Data Quality Objectives are to demonstrate
that samples of the Bayer spent carbon are
representative for all constituents listed
in paragraph (1).
(iii) The samples for the annual testing
taken for the second and subsequent annual
testing events shall be taken within the
same calendar month as the first annual
sample taken.
(iv) The annual testing report must include
the total amount of waste in cubic yards
disposed during the calendar year.
(4) Changes in Operating Conditions:
If Bayer significantly changes the process
described in its petition or starts any
process that generates the waste that may
or could affect the composition or type of
waste generated (by illustration, but not
limitation, changes in equipment or
operating conditions of the treatment
process), it must notify EPA in writing
and it may no longer handle the wastes
generated from the new process as non-
hazardous until the wastes meet the
delisting levels set in paragraph (1) and
it has received written approval to do so
from EPA.
Bayer must submit a modification to the
petition complete with full sampling and
analysis for circumstances where the waste
volume changes and/or additional waste
codes are added to the waste stream.
(5) Data Submittals:
Bayer must submit the information described
below. If Bayer fails to submit the
required data within the specified time or
maintain the required records on-site for
the specified time, EPA, at its
discretion, will consider this sufficient
basis to reopen the exclusion as described
in paragraph (6). Bayer must:
(A) Submit the data obtained through
paragraph 3 to the Chief, Corrective
Action and Waste Minimization Section,
Multimedia Planning and Permitting
Division, U.S. Environmental Protection
Agency Region 6, 1445 Ross Ave., Dallas,
Texas 75202, within the time specified.
All supporting data can be submitted on CD-
ROM or some comparable electronic media.
(B) Compile records of analytical data from
paragraph (3), summarized, and maintained
on-site for a minimum of five years.
(C) Furnish these records and data when
either EPA or the State of Texas requests
them for inspection.
[[Page 10685]]
(D) Send along with all data a signed copy
of the following certification statement,
to attest to the truth and accuracy of the
data submitted. ``Under civil and criminal
penalty of law for the making or
submission of false or fraudulent
statements or representations (pursuant to
the applicable provisions of the Federal
Code, which include, but may not be
limited to, 18 U.S.C. 1001 and 42 U.S.C.
6928), I certify that the information
contained in or accompanying this document
is true, accurate and complete.
As to the (those) identified section(s) of
this document for which I cannot
personally verify its (their) truth and
accuracy, I certify as the company
official having supervisory responsibility
for the persons who, acting under my
direct instructions, made the verification
that this information is true, accurate
and complete.
If any of this information is determined by
EPA in its sole discretion to be false,
inaccurate or incomplete, and upon
conveyance of this fact to the company, I
recognize and agree that this exclusion of
waste will be void as if it never had
effect or to the extent directed by EPA
and that the company will be liable for
any actions taken in contravention of the
company's RCRA and CERCLA obligations
premised upon the company's reliance on
the void exclusion.''
(6) Reopener:
(A) If, anytime after disposal of the
delisted waste Bayer possesses or is
otherwise made aware of any environmental
data (including but not limited to
leachate data or ground water monitoring
data) or any other data relevant to the
delisted waste indicating that any
constituent identified for the delisting
verification testing is at a level higher
than the delisting level allowed by EPA in
granting the petition, then the facility
must report the data, in writing, to EPA
within 10 days of first possessing or
being made aware of that data.
(B) If either the quarterly or annual
testing of the waste does not meet the
delisting requirements in paragraph 1,
Bayer must report the data, in writing, to
EPA within 10 days of first possessing or
being made aware of that data.
(C) If Bayer fails to submit the
information described in paragraphs (5),
(6)(A) or (6)(B) or if any other
information is received from any source,
EPA will make a preliminary determination
as to whether the reported information
requires action to protect human health
and/or the environment. Further action may
include suspending, or revoking the
exclusion, or other appropriate response
necessary to protect human health and the
environment.
(D) If EPA determines that the reported
information requires action, EPA will
notify the facility in writing of the
actions it believes are necessary to
protect human health and the environment.
The notice shall include a statement of
the proposed action and a statement
providing the facility with an opportunity
to present information explaining why the
proposed EPA action is not necessary. The
facility shall have 10 days from the date
of EPA's notice to present such
information.
(E) Following the receipt of information
from the facility described in paragraph
(6)(D) or (if no information is presented
under paragraph (6)(D)) the initial
receipt of information described in
paragraphs (5), (6)(A) or (6)(B), EPA will
issue a final written determination
describing the actions that are necessary
to protect human health and/or the
environment. Any required action described
in EPA's determination shall become
effective immediately, unless EPA provides
otherwise.
(7) Notification Requirements
Bayer must do the following before
transporting the delisted waste. Failure
to provide this notification will result
in a violation of the delisting petition
and a possible revocation of the decision.
(A) Provide a one-time written notification
to any state Regulatory Agency to which or
through which it will transport the
delisted waste described above for
disposal, 60 days before beginning such
activities.
(B) Update the one-time written
notification if it ships the delisted
waste into a different disposal facility.
(C) Failure to provide this notification
will result in a violation of the
delisting variance and a possible
revocation of the decision.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[FR Doc. E9-5213 Filed 3-11-09; 8:45 am]
BILLING CODE 6560-50-P
