Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Direct Final Exclusion, 58315-58328 [2010-23965]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 185 (Friday, September 24, 2010)]
[Rules and Regulations]
[Pages 58315-58328]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-23965]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R06-RCRA-2009-0312; SW FRL-9206-8]


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Direct Final Exclusion

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is proposing to grant a petition submitted by Eastman 
Chemical Company-Texas Operations (Eastman) to exclude (or delist) 
certain solid wastes generated by its Longview, Texas, facility from 
the lists of hazardous wastes. EPA used the Delisting Risk Assessment 
Software (DRAS) Version 3.0 in the evaluation of the impact of the 
petitioned waste on human health and the environment.

DATES: This rule is effective on November 23, 2010 without further 
notice, unless EPA receives relevant adverse comment by October 25, 
2010. If adverse comment is received, EPA will publish a timely 
withdrawal of this direct final rule in the Federal Register informing 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
RCRA-2009-0312 by one of the following methods:
    1. Federal eRulemaking Portal: http:[sol][sol]www.regulations.gov: 
Follow the on-line instructions for submitting comments.
    2. E-mail: peace.michelle@epa.gov.
    3. Mail: Michelle Peace, Environmental Protection Agency, 
Multimedia Planning and Permitting Division, RCRA Branch, Mail Code: 
6PD-C, 1445 Ross Avenue, Dallas, TX 75202.
    4. Hand Delivery or Courier. Deliver your comments to: Michelle 
Peace, Environmental Protection Agency, Multimedia Planning and 
Permitting Division, RCRA Branch, Mail Code: 6PD-C, 1445 Ross Avenue, 
Dallas, TX 75202.
    Instructions: Direct your comments to Docket ID No. EPA-R06-RCRA-
2009-0312. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http:[sol][sol]www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through 
http:[sol][sol]www.regulations.gov or e-mail. The 
http:[sol][sol]www.regulations.gov Web site is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through 
http:[sol][sol]www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
http:[sol][sol]www.regulations.gov index. Although listed in the index, 
some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available either 
electronically in http:[sol][sol]www.regulations.gov or in hard copy at 
the Environmental Protection Agency, RCRA Branch, 1445 Ross Avenue, 
Dallas, TX 75202. The hard copy of the RCRA regulatory docket for this 
proposed rule, EPA-R06-RCRA-2009-0312, is available for viewing from 8 
a.m. to 5 p.m., Monday through Friday, excluding Federal holidays. The 
public may copy material from any regulatory docket at no cost for the 
first 100 pages and at a cost of $0.15 per page for additional copies. 
EPA requests that you contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to schedule your inspection. The interested 
persons wanting to examine these documents should make an appointment 
with the office at least 24 hours in advance.

FOR FURTHER INFORMATION CONTACT: For further technical information 
concerning this document or for appointments to view the docket or the 
Eastman facility petition, contact Michelle Peace, Environmental 
Protection Agency, Multimedia Planning and Permitting Division, RCRA 
Branch, Mail Code: 6PD-C, 1445 Ross Avenue, Dallas, TX 75202, by 
calling (214) 665-7430 or by e-mail at peace.michelle@epa.gov.
    Your requests for a hearing must reach EPA by October 12, 2010. The 
request must contain the information described in 40 CFR 260.20(d) 
(hereinafter all sectional references are to 40 CFR unless otherwise 
indicated).

SUPPLEMENTARY INFORMATION: Eastman submitted a petition under 40 CFR 
260.20 and 260.22(a). Section 260.20 allows any person to petition the 
Administrator to modify or revoke any provision of parts 260 through 
266, 268 and 273. Section 260.22 (a) specifically provides generators 
the opportunity to petition the Administrator to exclude a waste on a 
``generator specific'' basis from the hazardous waste lists.
    The Agency bases its proposed decision to grant the petition on an 
evaluation of waste-specific information provided by the petitioner. 
This proposed decision, if finalized, would conditionally exclude the 
petitioned waste from the requirements of hazardous waste regulations 
under the Resource Conservation and Recovery Act (RCRA).
    If finalized, we would conclude the petitioned waste from this 
facility is non-hazardous with respect to the original listing criteria 
and that the waste process used will substantially reduce the 
likelihood of migration of hazardous constituents from this waste. We 
would also conclude that the processes minimize short-term and long-
term threats from the petitioned waste to human health and the 
environment.

Table of Contents

I. Overview Information
    A. What action is EPA approving?
    B. Why is EPA approving this delisting?
    C. How will Eastman manage the wastes, if it is delisted?
    D. When would the delisting exclusion be finalized?
    E. How would this action affect states?
II. Background
    A. What is the history of the delisting program?
    B. What is a delisting petition, and what does it require of a 
petitioner?
    C. What factors must EPA consider in deciding whether to grant a 
delisting petition?
III. EPA's Evaluation of the Waste Information and Data
    A. What wastes did Eastman petition EPA to delist?

[[Page 58316]]

    B. Who is Eastman and what process do they use to generate the 
petitioned wastes?
    C. What information did Eastman submit to support this petition?
    D. What were the results of Eastman's analysis?
    E. How did EPA evaluate the risk of delisting this waste?
    F. What did EPA conclude about Eastman's analysis?
    G. What other factors did EPA consider in its evaluation?
    H. What is EPA's evaluation of this delisting petition?
IV. Next Steps
    A. With what conditions must the petitioner comply?
    B. What happens, if Eastman violates the terms and conditions of 
this delisting action?
V. Final Action
VI. Statutory and Executive Order Reviews

I. Overview Information

A. What action is EPA approving?

    EPA is approving the delisting petition submitted by Eastman to 
have three waste streams generated from its rotary kiln incinerator 
(RKI) excluded, or delisted, from the definition of a hazardous waste. 
These waste streams are the rotary kiln incinerator (RKI) bottom ash, 
RKI fly ash, and RKI scrubber water blowdown. The RKI bottom ash and 
the RKI fly ash are derived from the management of several F-, K-, and 
U-waste codes. These waste codes are F001, F002, F003, F005, F039, 
K009, K010, U001, U002, U031, U069, U107, U112, U117, U140, U147, U161, 
U213, and U359. The Scrubber water blowdown produced by the RKI's air 
pollution control equipment is also derived from the management of 
several F-, K-, and U-waste codes as well as certain characteristic 
hazardous wastes. These waste codes are D001, D002, D003, D007, D008, 
D018, D022, F001, F002, F003, F005, F039, K009, K010, U001, U002, U031, 
U069, U107, U112, U117, U140, U147, U161, U213, and U359. The RKI is 
authorized to manage a list of additional F-, K-, U-, and P-codes to 
cover off-site sources not attributed to the above waste codes. If 
these waste codes are not specifically listed in the delisting 
exclusion, they are not covered by the exclusion and can not be managed 
as non-hazardous, unless and until, the exclusion is modified to 
include them.

B. Why is EPA approving this delisting?

    Eastman's petition requests a delisting for three waste streams: 
The RKI bottom ash, RKI fly ash, and RKI scrubber water blowdown listed 
as D001, D002, D003, D007, D008, D018, D022, F001, F002, F003, F005, 
F039, K009, K010, U001, U002, U031, U069, U107, U112, U117, U140, U147, 
U161, U213, and U359. Eastman does not believe that the petitioned 
wastes meet the criteria for which EPA listed them. Eastman also 
believes no additional constituents or factors could cause the wastes 
to be hazardous. EPA's review of this petition included consideration 
of the original listing criteria, and the additional factors required 
by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See section 
3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4). In 
making the initial delisting determination, EPA evaluated the 
petitioned waste against the listing criteria and factors cited in 
Sec.  261.11(a)(2) and (a)(3). Based on this review, EPA agrees with 
the petitioner that the waste is non-hazardous with respect to the 
original listing criteria. If EPA had found, based on this review, that 
the waste remained hazardous based on the factors for which the waste 
was originally listed, EPA would have proposed to deny the petition. 
EPA evaluated the waste with respect to other factors or criteria to 
assess whether there is a reasonable basis to believe that such 
additional factors could cause the waste to be hazardous. EPA 
considered whether the waste is acutely toxic, the concentration of the 
constituents in the waste, their tendency to migrate and to 
bioaccumulate, their persistence in the environment once released from 
the waste, plausible and specific types of management of the petitioned 
waste, the quantities of waste generated, and waste variability. EPA 
believes that the petitioned wastes do not meet the listing criteria 
and thus should not be a listed waste. EPA's decision to delist the 
wastes identified above from the facility is based on the information 
submitted in support of this rule, including descriptions of the waste 
and analytical data from the Eastman, Longview, Texas facility.

C. How will Eastman manage the waste, if it is delisted?

    Eastman will dispose of the fly ash and bottom ash in an onsite 
landfill. The scrubber water blowdown will be managed in the waste 
water treatment plant (WWTP). The sludge from the WWTP has been 
delisted. See Appendix IX to Part 261, Table 1. All management occurs 
on-site and will remain the same after the delisting is granted.

D. When would the delisting exclusion be finalized?

    RCRA section 3001(f) specifically requires EPA to provide notice 
and an opportunity for comment before granting or denying a final 
exclusion. Thus, EPA will not grant the exclusion unless and until it 
addresses all timely public comments (including those at public 
hearings, if any) on this proposal.
    RCRA section 3010(b)(1), at 42 USCA 6930(b)(1), allows rules to 
become effective in less than six months after EPA addresses public 
comments when the regulated facility does not need the six-month period 
to come into compliance. That is the case here, because this rule, if 
finalized, would reduce the existing requirements for persons 
generating hazardous wastes.
    EPA believes that this exclusion should be effective immediately 
upon final publication because a six-month deadline is not necessary to 
achieve the purpose of section 3010(b), and a later effective date 
would impose unnecessary hardship and expense on this petitioner. These 
reasons also provide good cause for making this rule effective 
immediately, upon final publication, under the Administrative Procedure 
Act, 5 U.S.C. 553(d).

E. How would this action affect the states?

    Because EPA is issuing this exclusion under the Federal RCRA 
delisting program, only states subject to Federal RCRA delisting 
provisions would be affected. This would exclude states which have 
received authorization from EPA to make their own delisting decisions.
    EPA allows the states to impose their own non-RCRA regulatory 
requirements that are more stringent than EPA's, under section 3009 of 
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a 
provision that prohibits a Federally issued exclusion from taking 
effect in the state. Because a dual system (that is, both Federal 
(RCRA) and state (non-RCRA) programs) may regulate a petitioner's 
waste, EPA urges petitioners to contact the state regulatory authority 
to establish the status of their wastes under the state law. Delisting 
petitions approved by EPA Administrator under 40 CFR 260.22 are 
effective in the State of Texas only after the final rule has been 
published in the Federal Register.

II. Background

A. What is the history of the delisting program?

    EPA published an amended list of hazardous wastes from nonspecific 
and specific sources on January 16, 1981, as part of its final and 
interim final regulations implementing section 3001 of RCRA. EPA has 
amended the lists several times and codified them in Sec. Sec.  261.31 
and 261.32. EPA lists these wastes as hazardous because: (1) They

[[Page 58317]]

typically and frequently exhibit one or more of the characteristics of 
hazardous wastes identified in Subpart C of Part 261 (that is, 
ignitability, corrosivity, reactivity, and toxicity) or (2) they meet 
the criteria for listing contained in Sec.  261.11(a)(2) or (a)(3).
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
described in these regulations generally is hazardous, a specific waste 
from an individual facility meeting the listing description may not be 
hazardous.
    For this reason, Sec. Sec.  260.20 and 260.22 provide an exclusion 
procedure, called delisting, which allows persons to prove that EPA 
should not regulate a specific waste from a particular generating 
facility as a hazardous waste.

B. What is a delisting petition, and what does it require of a 
petitioner?

    A delisting petition is a request from a facility to EPA or an 
authorized State to exclude wastes from the list of hazardous wastes. 
The facility petitions EPA because it does not believe the wastes 
should be hazardous under RCRA regulations.
    In a delisting petition, the petitioner must show that wastes 
generated at a particular facility do not meet any of the criteria for 
which the waste was listed. The criteria for which EPA lists a waste 
are in Part 261 and further explained in the background documents for 
the listed waste.
    In addition, under Sec.  260.22, a petitioner must prove that the 
waste does not exhibit any of the hazardous waste characteristics and 
present sufficient information for EPA to decide whether factors other 
than those for which the waste was listed warrant retaining it as a 
hazardous waste. See Part 261 and the background documents for the 
listed waste.
    Generators remain obligated under RCRA to confirm whether their 
waste remains non-hazardous based on the hazardous waste 
characteristics even if EPA has ``delisted'' the waste.

C. What factors must EPA consider in deciding whether to grant a 
delisting petition?

    Besides considering the criteria in Sec.  260.22(a) and section 
3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for 
the listed wastes, EPA must consider any factors (including additional 
constituents) other than those for which EPA listed the waste, if a 
reasonable basis exists to determine that these additional factors 
could cause the waste to be hazardous.
    EPA must also consider as hazardous waste mixtures containing 
listed hazardous wastes and wastes derived from treating, storing, or 
disposing of listed hazardous waste. See Sec.  261.3(a)(2)(iii) and 
(iv) and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules, 
respectively. These wastes are also eligible for exclusion and remain 
hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).

III. EPA's Evaluation of the Waste Information and Data

A. What waste did Eastman petition EPA to delist?

    Eastman petitioned EPA on December 1, 2008, to exclude from the 
lists of hazardous wastes contained in Sec. Sec.  261.24, 261.31, and 
261.32, certain wastes from its rotary kiln incineration system. The 
three waste streams included in the petition were: the RKI fly ash, RKI 
bottom ash and RKI scrubber water blowdown.
    The waste streams are generated from the Eastman facility located 
in Longview, Texas. The RKI fly ash and RKI bottom ash are listed under 
EPA Hazardous Waste No. F001, F002, F003, F005, F039, K009, K010, U001, 
U002, U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359. 
The Scrubber water blowdown produced by the RKI's air pollution control 
equipment is also derived from the management of several F-, K-, and U- 
waste codes as well as certain characteristic hazardous wastes. These 
waste codes are D001, D002, D003, D007, D008, D018, D022, F001, F002, 
F003, F005, F039, K009, K010, U001, U002, U031, U069, U107, U112, U117, 
U140, U147, U161, U213, and U359. Specifically, in its petition, 
Eastman requested that EPA grant exclusions for 1,000 cubic yards per 
calendar year of RKI fly ash; 750 cubic yards per calendar year of RKI 
bottom ash; and 643,000 cubic yards (500,000 million gallons) of RKI 
scrubber water blowdown waste resulting from the operations of the 
rotary kiln incinerator at its facility.

B. Who is Eastman and what process do they use to generate the 
petitioned waste?

    Eastman manufactures a variety of chemicals and plastics at its 
facility located in Longview, Texas. The Longview, Texas facility 
occupies roughly 6,000 acres of land and produces approximately 40 
chemical and plastic product lines. While Eastman owns and operates a 
majority of individual production plants at the facility, there are 
some production plants that are not owned by Eastman but are located on 
the facility. Eastman provides utility support to these captured 
facilities, such use of the wastewater treatment plant and waste 
management in the RKI through service agreements. The production 
processes employed by the captured facilities produce products in 
conjunction with Eastman. The Eastman-Longview Texas facility also 
accepts waste for processing in the RKI from other off-site Eastman 
facilities. This facility does not accept wastes from sources outside 
the Eastman family. The unit is dedicated to wastes similar to those 
generated by Eastman only facilities.
    The RKI is a thermal combustion unit owned and operated by Eastman 
that is used for the destruction of hazardous and non-hazardous wastes 
generated by Eastman Chemicals as well as its captured facilities. The 
RKI operates at 1700-2200 [deg]F and is RCRA permitted to manage a 
large variety of wastes including wastes generated from other Eastman 
divisions. These wastes can have a variety of D-, F-, U-, K-, and P- 
codes. In practice, the waste codes managed in the RKI will be 
associated with production processes from Eastman Chemicals.
    The RKI Bottom and Fly Ashes and Scrubber Water Blowdown are 
generated by the RKI as residuals from the waste combustion process. 
Bottom ash is generated when large particulate matter drops from the 
secondary combustion chamber (SCC) into an ash removal pit situated 
directly under the SCC. Bottom ashes are removed from the pit via a 
chain driven ash conveyor system and placed in large containers for 
subsequent management. They are tested, may have polymers added to them 
for stabilization and disposed of in an on-site hazardous waste 
landfill. Fly ash is lighter than bottom ash and is associated with 
finer particulate matter that leaves the SCC as part of the ``exhaust'' 
gas. From the SCC, exhaust gases pass through a rapid quench tank and 
condenser, which have water layers to capture smaller particulate 
matter. Exhaust gas then proceeds through a wet scrubber where more 
particulate matter is removed. The ``blowdown'' water streams through 
the quench/condenser and scrubber systems are routed to a blowdown tank 
(clarifier). In the tank, the combined blowdown stream (fly ash and 
water) is phase separated with the scrubber water blowdown then going 
to the wastewater system and fly ash slurry going to a rotary filter 
for dewatering. It is at this point in the system that scrubber water 
blowdown is defined. It is also at this point in the system that 
dewatered

[[Page 58318]]

solids from the rotary filter are considered fly ash. The dewatered fly 
ash is removed from the filter and placed in large containers for 
subsequent management which can consist of testing, addition of 
polymers (as needed), and disposal in the on-site hazardous waste 
landfill.
    Eastman intends to dispose of the delisted RKI bottom ash and RKI 
fly ash at a on-site Subtitle D Landfill, and the RKI scrubber water 
blowdown will be treated in the Wastewater Treatment Plant. Treatment 
of process wastes and wastes from captured facilities generate the RKI 
bottom ash, RKI fly ash, and RKI scrubber water blowdown that is 
classified as F001, F002, F003, F005, F039, K009, K010, U001, U002, 
U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359 listed 
hazardous wastes pursuant to 40 CFR 261.31 and 261.32. The 40 CFR Part 
261 Appendix VII hazardous constituents which are the basis for listing 
can be found in Table 1 and Table 2.

    Table 1--EPA Waste Codes for RKI Ashes and the Basis for Listing
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       Waste code                       Basis for listing
------------------------------------------------------------------------
F001...................  Tetrachloroethylene, methylene chloride
                          trichloroethylene, 1,1,1-trichloroethane,
                          carbon tetrachloride, chlorinated
                          fluorocarbons.
F002...................  Tetrachloroethylene, methylene chloride,
                          trichloroethylene, 1,1,1-trichloroethane,
                          1,1,2-trichloroethane, chlorobenzene, 1,1,2-
                          trichloro-1,2,2-trifluoroethane, ortho-
                          dichlorobenzene, trichlorofluoromethane.
F003...................  N.A., xylene, acetone, ethyl acetate, ethyl
                          benzene, ethyl ether, methyl isobutyl ketone,
                          n-butyl alcohol, cyclohexane, methanol.
F005...................  Toluene, methyl ethyl ketone, carbon disulfide,
                          isobutanol, pyridine, 2-ethoxyethanol,
                          benzene, 2-nitropropane.
F039...................  All constituents for which treatment standards
                          are specified for multi-source leachate
                          (wastewaters and nonwastewaters) under 40 CFR
                          268.43, Table CCW.
K009...................  Chloroform, formaldehyde, methylene chloride,
                          methyl chloride, paraldehyde, formic acid.
K010...................  Chloroform, formaldehyde, methylene chloride,
                          methyl chloride, paraldehyde, formic acid,
                          chloroacetaldehyde.
U001...................  Acetaldehyde.
U002...................  Acetone.
U028...................  Bis (2-ethyl hexyl) phthalate.
U031...................  n-Butyl alcohol.
U069...................  Dibutyl phthalate.
U088...................  Di-ethyl phthalate.
U107...................  Di-n-octyl phthalate.
U112...................  Ethyl acetate.
U115...................  Ethylene oxide.
U117...................  Ethane, 1,1'-oxybis-(I).
U122...................  Formaldehyde.
U140...................  Isobutyl alcohol.
U147...................  Maleic anhydride.
U154...................  Methanol.
U159...................  Methyl ethyl ketone.
U161...................  Methyl isobutyl ketone.
U213...................  Tetrahydrofuran.
U220...................  Toluene.
U226...................  1,1,1-Trichloroethane (methyl chloroform).
U239...................  Xylene.
U359...................  Ethylene glycol monoethyl ether.
------------------------------------------------------------------------


    Table 2--EPA Waste Codes for RKI Ashes and the Basis for Listing
------------------------------------------------------------------------
       Waste code                       Basis for listing
------------------------------------------------------------------------
F001...................  Tetrachloroethylene, methylene chloride
                          trichloroethylene, 1,1,1-trichloroethane,
                          carbon tetrachloride, chlorinated
                          fluorocarbons.
F002...................  Tetrachloroethylene, methylene chloride,
                          trichloroethylene, 1,1,1-trichloroethane,
                          1,1,2-trichloroethane, chlorobenzene, 1,1,2-
                          trichloro-1,2,2-trifluoroethane, ortho-
                          dichlorobenzene, trichlorofluoromethane.
F003...................  N.A., xylene, acetone, ethyl acetate, ethyl
                          benzene, ethyl ether, methyl isobutyl ketone,
                          n-butyl alcohol, cyclohexane, methanol.
F005...................  Toluene, methyl ethyl ketone, carbon disulfide,
                          isobutanol, pyridine, 2-ethoxyethanol,
                          benzene, 2-nitropropane.
F039...................  All constituents for which treatment standards
                          are specified for multi-source leachate
                          (wastewaters and nonwastewaters) under 40 CFR
                          268.43, Table CCW.
K009...................  Chloroform, formaldehyde, methylene chloride,
                          methyl chloride, paraldehyde, formic acid.
K010...................  Chloroform, formaldehyde, methylene chloride,
                          methyl chloride, paraldehyde, formic acid,
                          chloroacetaldehyde.
U001...................  Acetaldehyde.
U002...................  Acetone.
U028...................  Bis (2-ethyl hexyl) phthalate.
U031...................  n-Butyl alcohol.
U069...................  Dibutyl phthalate.
U088...................  Di-ethyl phthalate.
U107...................  Di-n-octyl phthalate.
U112...................  Ethyl acetate.
U115...................  Ethylene oxide.
U117...................  Ethane, 1,1'-oxybis-(I).
U122...................  Formaldehyde.
U140...................  Isobutyl alcohol.
U147...................  Maleic anhydride.
U154...................  Methanol.
U159...................  Methyl ethyl ketone.
U161...................  Methyl isobutyl ketone.

[[Page 58319]]

 
U213...................  Tetrahydrofuran.
U220...................  Toluene.
U226...................  1,1,1-Trichloroethane (methyl chloroform).
U239...................  Xylene.
U359...................  Ethylene glycol monoethyl ether.
D001...................  Ignitability.
D002...................  Corrosivity.
D003...................  Reactivity.
D007...................  Chromium.
D008...................  Lead.
D018...................  Benzene.
D022...................  Chloroform.
------------------------------------------------------------------------

C. What information did Eastman submit to support this petition?

    To support its petition, Eastman submitted:
    1. Analytical results of the toxicity characteristic leaching 
procedure and total constituent analysis for volatile and semivolatile 
organics, pesticides, herbicides, dioxins/furans, PCBs and metals for 
eight samples for the RKI fly ash and RKI bottom ash, and RKI scrubber 
water blowdown;
    2. Analytical results of the total constituent analysis for 
volatile and semivolatile organics, pesticides, herbicides, dioxins/
furans, PCBs and metals for eight samples for the RKI scrubber water 
blowdown;
    3. Analytical results from multiple pH leaching of metals and;
    4. Description of the operations and waste received of the RKI.

D. What were the results of Eastman's analysis?

    EPA believes that the descriptions of Eastman's waste, and the 
analytical data submitted in support of the petition show that the RKI 
bottom ash, RKI fly ash, and RKI scrubber water blowdown are non-
hazardous. Analytical data from Eastman's RKI bottom ash, RKI fly ash, 
and RKI scrubber water blowdown samples were used in the Delisting Risk 
Assessment Software (DRAS). The data summaries for detected 
constituents are presented in Table 3, 4, and 5. EPA has reviewed the 
sampling procedures used by Eastman and has determined that they 
satisfy EPA's criteria for collecting representative samples of the 
variations in constituent concentrations in the RKI bottom ash, RKI fly 
ash, and RKI scrubber water blowdown. The data submitted in support of 
the petition show that constituents in Eastman's wastes are presently 
below health-based risk levels used in the delisting decision-making. 
EPA believes that Eastman has successfully demonstrated that the RKI 
bottom ash, RKI fly ash, and RKI scrubber water blowdown are non-
hazardous.

       Table 3--Analytical Results and Maximum Allowable Delisting Concentrations of the RKI bottom ash\1\
----------------------------------------------------------------------------------------------------------------
                                                                                          Maximum allowable TCLP
             Constituent                Maximum total (mg/kg)     Maximum  TCLP (mg/l)    delisting level (mg/L)
----------------------------------------------------------------------------------------------------------------
Antimony.............................                       16                    0.062                    0.801
Acetone..............................                    0.194                    0.772                     33.8
Arsenic..............................                      8.8                    0.029                    0.126
Acetaldehyde.........................                     1.37                  <0.0100                     5.35
Acenaphthylene.......................                      3.5                    0.014                     31.9
Anthracene...........................                      1.6                  <0.0100                     77.9
Acenaphthene.........................                    0.721                    0.014                     31.9
Barium...............................                      370                      0.7                      100
Benzene..............................                   <0.170                   0.0048                    0.231
Bis(2-ethylhexyl)phthalate...........                     0.23                    0.017                    103.0
Benzo(a) anthracene..................                    0.763                  <0.0100                    0.211
Benzo(a) pyrene......................                    0.519                  <0.0100                     79.1
Benzo(b) flouranthene................                    0.343                  <0.0100                      673
Bromomethane.........................                    0.057                  <0.0100                   0.0526
n-Butyl alcohol......................                      4.5                  <0.0100                      174
Cadmium..............................                      1.5                    0.002                    0.274
Chromium.............................                       14                     0.02                      5.0
Cobalt...............................                       31                    0.023                    0.643
Copper...............................                       29                    0.048                     73.8
Chloroform...........................                   0.0024                   0.0047                    0.241
Chrysene.............................                    0.545                  <0.0100                      211
Chloromethane........................                    0.034                  <0.0100                     18.2
Cyanide..............................                    0.195                    0.125                     9.25
4,4-DDT..............................                   0.0032                  <0.0100                   0.0103
Di-n-butyl phthalate.................                   <0.010                    0.005                     73.9
Dieldrin.............................                   0.0013                  <0.0100                     2.78
Ethylbenzene.........................                   0.0086                  0.00855                     32.6
Fluorene.............................                     2.24                    0.031                     14.7
Formaldehyde.........................                      4.6                     0.23                      347
Fluoranthrene........................                     1.22                  <0.0100                     7.39

[[Page 58320]]

 
Isobutanol...........................                      1.9                     1.88                      521
Lead.................................                      7.1                    0.016                     1.95
Mercury..............................                   <0.017                  <0.0002                      0.2
Methyl Isobutyl ketone...............                   0.0035                   0.0048                      139
2-Methylnaphathalene.................                    0.501                    0.012                     2.18
Methylene Chloride...................                    0.072                    0.131                    0.237
Naphthalene..........................                   <0.022                  <0.0100                   0.0983
Nickel...............................                   44,000                       52                     54.1
Phenanthrene.........................                     6.48                    0.039                     14.7
Pyrene...............................                     2.67                  <0.0100                     13.4
Selenium.............................                       15                    0.074                      1.0
Silver...............................                    0.027                  <0.0020                      5.0
Tetrachlorodibenzo-p-dioxin (TCDD)                    0.31E-06                <5.92E-08    7.46 E-06 mg/kg total
 2,3,7,8-............................
Thallium.............................                      3.7                    0.017                    0.110
Tin..................................                      3.9                  <0.0100                     22.5
Toluene..............................                    0.015                   0.0066                     45.4
Vanadium.............................                      7.1                     0.11                     10.4
Xylenes..............................                    0.049                   0.0486                     28.7
Zinc.................................                      550                      8.5                      600
----------------------------------------------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent found in any one sample. These levels
  do not necessarily represent the specific levels found in one sample.
<  Denotes that the constituent was below the detection limit.


        Table 4--Analytical Results and Maximum Allowable Delisting Concentrations of the RKI Fly Ash\1\
----------------------------------------------------------------------------------------------------------------
                                                                                          Maximum allowable TCLP
             Constituent                Maximum total (mg/kg)     Maximum TCLP (mg/l)     delisting level (mg/L)
----------------------------------------------------------------------------------------------------------------
Antimony.............................                       25                     0.18                    0.433
Acetone..............................                    0.177                    0.959                     2070
Arsenic..............................                       18                    0.045                    0.418
Acetaldehyde.........................                      255                   <0.001                   0.6264
Barium...............................                      110                      1.4                      100
Bis(2-ethylhexyl)phthalate...........                    0.157                    0.006                   0.0522
Cadmium..............................                      2.9                    0.011                    0.362
Chromium.............................                      5.9                    0.015                      5.0
Cobalt...............................                       86                      0.1                    0.852
Copper...............................                      100                     0.52                     97.1
Chloroform...........................                    0.002                   0.0044                    0.319
Chloromethane........................                   0.0285                   0.0018                     24.1
Cyanide..............................                     0.17                   <0.001                   0.0154
Delta BHC............................                   0.0031                   <0.001                        3
1,2-Dichlorobenzene..................                     <0.5                   0.0027                       37
1,3-Dichlorobenzene..................                     <0.5                   0.0023                       37
Formaldehyde.........................                     5.44                    0.272                      461
Lead.................................                       12                    0.021                     2.45
Methanol.............................                     12.2                   <0.001                   0.6743
Methyl isobutanol ketone.............                    0.004                   0.0048                      184
Methylene Chloride...................                    0.047                    0.137                    0.315
Nickel...............................                  110,000                       47                     53.8
Nitrobenzene.........................                     <0.5                    0.011                     1.15
Selenium.............................                       25                    0.082                      1.0
Silver...............................                      2.4                   <0.001                      5.0
Thallium.............................                      6.7                    0.019                    0.146
Tin..................................                      7.8                   <0.001                     22.5
Toluene..............................                    0.002                    0.037                     60.1
Vanadium.............................                      6.2                   <0.001                    14.36
Zinc.................................                     4200                   <0.001                     11.3
Tetrachlorodibenzo-p-dioxin (TCDD)     .......................           2.8 E-06 mg/kg    8.39 E-05 mg/kg total
 2,3,7,8-............................
----------------------------------------------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent found in any one sample. These levels
  do not necessarily represent the specific levels found in one sample.
<  Denotes that the constituent was below the detection limit.


[[Page 58321]]


       Table 5--Analytical Results and Maximum Allowable Delisting
          Concentrations of the RKI Scrubber Water Blowdown \1\
------------------------------------------------------------------------
                                                              Maximum
                                           Maximum TCLP   allowable TCLP
               Constituent                    (mg/l)         delisting
                                                           level (mg/l)
------------------------------------------------------------------------
Antimony................................          0.041           0.0568
Arsenic.................................          0.013           0.112
Barium..................................          0.61           11.6
Bis(2-ethylhexyl)phthalate..............          0.009           0.0522
Chromium................................          0.019          10.3
Cobalt..................................          0.012           0.318
Copper..................................          0.052          22.1
Chloroform..............................          0.001           0.0163
Chloromethane...........................          0.0021          1.48
Cyanide.................................          0.0048          0.752
Di-n-butylphthalate.....................          0.001          25.6
Lead....................................          0.019           2.57
Methanol................................          0.42           70.6
Nickel..................................          0.50            5.74
Silver..................................          0.002           1.71
Thallium................................          0.011           0.0179
Tin.....................................          0.022          22.5
Vanadium................................          0.006           4.88
Zinc....................................         16              77.7
------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent
  found in any one sample. These levels do not necessarily represent the
  specific levels found in one sample.
<  Denotes that the constituent was below the detection limit.

E. How did EPA evaluate the risk of delisting this waste?

    The worst case scenario for management of the RKI bottom ash and 
RKI fly ash was modeled for disposal in a landfill. The worst case 
scenario for management of the RKI scrubber water blowdown was modeled 
for disposal in a surface impoundent. EPA used such information 
gathered to identify plausible exposure routes (i.e., ground water, 
surface water, soil, air) for hazardous constituents present in the RKI 
bottom ash, RKI fly ash, and RKI scrubber water blowdown. EPA 
determined that disposal in a Subtitle D landfill is the most 
reasonable, worst-case disposal scenario for Eastman's RKI bottom ash 
and RKI fly ash. EPA determined that disposal in a surface impoundment 
is the most reasonable, worst-case disposal scenario for Eastman's RKI 
scrubber water blowdown. EPA applied the DRAS described in 65 FR 58015 
(September 27, 2000), 65 FR 75637 (December 4, 2000) and 73 FR 28768 
(May 19, 2008), to predict the maximum allowable concentrations of 
hazardous constituents that may be released from the petitioned wastes 
after disposal and determined the potential impact of the disposal of 
Eastman's petitioned wastes on human health and the environment. In 
assessing potential risks to ground water, EPA used the maximum 
estimated waste volumes and the maximum reported extract concentrations 
as inputs to the DRAS program to estimate the constituent 
concentrations in the ground water at a hypothetical receptor well down 
gradient from the disposal site. Using the risk level (carcinogenic 
risk of 10\-5\ and non-cancer hazard index of 0.1), the DRAS program 
can back-calculate the acceptable receptor well concentrations 
(referred to as compliance-point concentrations) using standard risk 
assessment algorithms and Agency health-based numbers. Using the 
maximum compliance-point concentrations and EPA Composite Model for 
Leachate Migration with Transformation Products (EPACMTP) fate and 
transport modeling factors, the DRAS further back-calculates the 
maximum permissible waste constituent concentrations not expected to 
exceed the compliance-point concentrations in ground water.
    EPA believes that the EPACMTP fate and transport model represents a 
reasonable worst-case scenario for possible ground water contamination 
resulting from disposal of the petitioned waste in a landfill for the 
ashes, and a surface impoundment for the liquid scrubber water 
blowdown. A reasonable worst-case scenario is appropriate when 
evaluating whether a waste should be relieved of the protective 
management constraints of RCRA Subtitle C. The use of some reasonable 
worst-case scenarios resulted in conservative values for the 
compliance-point concentrations and ensured that the waste, once 
removed from hazardous waste regulation, will not pose a significant 
threat to human health and/or the environment. The DRAS also uses the 
maximum estimated waste volumes and the maximum reported total 
concentrations to predict possible risks associated with releases of 
waste constituents through surface pathways (e.g., volatilization or 
wind-blown particulate from the landfill). As in the above ground water 
analyses, the DRAS uses the risk level, the health-based data and 
standard risk assessment and exposure algorithms to predict maximum 
compliance-point concentrations of waste constituents at a hypothetical 
point of exposure. Using fate and transport equations, the DRAS uses 
the maximum compliance-point concentrations and back-calculates the 
maximum allowable waste constituent concentrations (or ``delisting 
levels'').
    In most cases, because a delisted waste is no longer subject to 
hazardous waste control, EPA is generally unable to predict, and does 
not presently control, how a petitioner will manage a waste after 
delisting. Therefore, EPA currently believes that it is inappropriate 
to consider extensive site-specific factors when applying the fate and 
transport model. EPA also considers the applicability of ground water 
monitoring data during the evaluation of delisting petitions. In this 
case, the ground water monitoring data was submitted in the previous 
petition and these wastes do not appear to be impacting the ground 
water of the landfill.

[[Page 58322]]

    EPA believes that the descriptions of Eastman's RKI bottom ash, RKI 
fly ash, and RKI scrubber water blowdown and analytical 
characterizations of these wastes illustrate the presence of toxic 
constituents at lower concentrations in these waste streams. Therefore, 
it is reasonable to conclude that the likelihood of migration of 
hazardous constituents from the petitioned waste will be substantially 
reduced so that short-term and long-term threats to human health and 
the environment are minimized.
    The DRAS results, which calculated the maximum allowable 
concentration of chemical constituents in the RKI bottom ash, RKI fly 
ash, and RKI scrubber water blowdown are presented in Tables 3, 4, and 
5. Based on the comparison of the DRAS results and maximum TCLP 
concentrations found in Tables 3, 4, and 5, the petitioned wastes 
should be delisted because no constituents of concern are likely to be 
present or formed as reaction products or by products in Eastman's 
wastes.

F. What did EPA conclude about Eastman's analysis?

    EPA concluded, after reviewing Eastman's processes that no other 
hazardous constituents of concern, other than those for which Eastman 
tested, are likely to be present or formed as reaction products or by-
products in Eastman's wastes. In addition, on the basis of explanations 
and analytical data provided by Eastman, pursuant to Sec.  260.22, EPA 
concludes that the petitioned wastes: RKI bottom ash, RKI fly ash, and 
RKI scrubber water blowdown do not exhibit any of the characteristics 
of ignitability, corrosivity, reactivity, or toxicity. See Sec. Sec.  
261.21, 261.22, 261.23, and 261.24 respectively.

G. What other factors did EPA consider in its evaluation?

    During the evaluation of this petition, in addition to the 
potential impacts to the ground water, EPA also considered the 
potential impact of the petitioned waste via non-ground water exposure 
routes (i.e., air emissions and surface runoff) for the RKI bottom ash, 
RKI fly ash, and RKI scrubber water blowdown. With regard to airborne 
dispersion in particular, EPA believes that exposure to airborne 
contaminants from the petitioned waste is unlikely. No appreciable air 
releases are likely from the RKI bottom ash and, RKI fly ash under any 
likely disposal conditions. EPA evaluated the potential hazards 
resulting from the unlikely scenario of airborne exposure to hazardous 
constituents released from the wastewater in an open landfill. The 
results of this worst-case analysis indicated that there is no 
substantial present or potential hazard to human health and the 
environment from airborne exposure to constituents from the RKI bottom 
ash and RKI fly ash. The RKI scrubber water blowdown was also evaluated 
for releases to the air from an impoundment and no substantial present 
or potential hazard was identified.

H. What is EPA's evaluation of this delisting petition?

    The descriptions by Eastman of the hazardous waste process and 
analytical characterization, with the proposed verification testing 
requirements (as discussed later in this notice), provide a reasonable 
basis for EPA to grant the petition. The data submitted in support of 
the petition show that constituents in the waste are below the maximum 
allowable concentrations (See Tables 3, 4, and 5). EPA believes that 
the RKI bottom ash, RKI fly ash, and RKI scrubber water blowdown 
generated by Eastman contains hazardous constituents at levels which 
will present minimal short-term and long-term threats from the 
petitioned wastes to human health and the environment.
    Thus, EPA believes that it should grant to Eastman an exclusion 
from the list of hazardous wastes for the RKI bottom ash, RKI fly ash, 
and RKI scrubber water blowdown. EPA believes that the data submitted 
in support of the petition show the Eastman's RKI bottom ash, RKI fly 
ash, and RKI scrubber water blowdown to be non-hazardous.
    EPA has reviewed the sampling procedures used by Eastman and has 
determined they satisfy EPA's criteria for collecting representative 
samples of variable constituent concentrations in the RKI bottom ash, 
RKI fly ash, and RKI scrubber water blowdown. The data submitted in 
support of the petition show that constituents in Eastman's wastes are 
presently below the compliance-point concentrations used in the 
delisting decision-making process and would not pose a substantial 
hazard to the environment and the public. EPA believes that Eastman has 
successfully demonstrated that the RKI bottom ash, RKI fly ash, and RKI 
scrubber water blowdown are non-hazardous.
    EPA, therefore, proposes to grant an exclusion to Eastman for the 
RKI bottom ash, RKI fly ash, and RKI scrubber water blowdown described 
in its December 2008 petition. EPA's decision to exclude these wastes 
is based on analysis performed on samples taken of the RKI bottom ash, 
RKI fly ash, and RKI scrubber water blowdown.
    If EPA finalizes the proposed rule, EPA will no longer regulate 
1,000 cubic yards/year of RKI bottom ash; 750 cubic yards/year of RKI 
fly ash, and 643,000 cubic yards/year (500,000 million gallons) of RKI 
scrubber water blowdown from Eastman's Longview facility under parts 
262 through 268 and the permitting standards of part 270.

IV. Next Steps

A. With what conditions must the petitioner comply?

    The petitioner, Eastman, must comply with the requirements in 40 
CFR Part 261, Appendix IX, Tables 1, 2, and 3 as amended by this 
notice. The text below gives the rationale and details of those 
requirements.
(1) Delisting Levels
    This paragraph provides the levels of constituent concentrations 
for which Eastman RKI bottom ash, RKI fly ash, and RKI scrubber water 
blowdown, below which these wastes would be considered non-hazardous.
    EPA selected the set of inorganic and organic constituents 
specified in paragraph (1) and listed in 40 CFR part 261, appendix IX, 
tables 1, 2, or 3 based on information in the petition. EPA compiled 
the inorganic and organic constituents list from descriptions of the 
manufacturing process used by Eastman, previous test data provided for 
the waste, and the respective health-based levels used in delisting 
decision-making. These delisting levels correspond to the allowable 
levels measured in the leachable concentrations of the RKI bottom ash 
and RKI fly ash, and total concentrations of the RKI scrubber water 
blowdown.
(2) Waste Holding and Handling
    Waste classification as non-hazardous cannot begin until compliance 
with the limits set in paragraph (1) has occurred for four consecutive 
quarterly sampling events. For example, if Eastman is issued a final 
exclusion in August, the first of four quarterly samples per waste 
stream can be collected in September. If EPA deems that the four 
representative composite samples of each waste stream meet all the 
indicator constituent delisting limits, classification of the waste as 
non-hazardous can begin in September of the next year. If constituent 
levels in any annual sample (and retest, if applicable) taken by 
Eastman exceed any of the delisting levels set in paragraph (1), 
Eastman must: (i) notify EPA in accordance with paragraph (6), and; 
(ii) manage and dispose of the RKI bottom ash, RKI fly

[[Page 58323]]

ash, and RKI scrubber water blowdown as hazardous waste generated under 
Subtitle C of RCRA.
(3) Verification Testing Requirements
    Eastman must complete a verification testing program on the RKI 
bottom ash, RKI fly ash, and RKI scrubber water blowdown to assure that 
the wastes do not exceed the maximum levels specified in paragraph (1). 
If EPA determines that the data collected under this paragraph does not 
support the data provided in the petition, the exclusion will not cover 
the tested waste. This verification program operates on two levels.
    The initial part of the verification testing program consists of 
testing four composite samples from four consecutive quarters of RKI 
bottom ash, RKI fly ash, and RKI scrubber water blowdown for specified 
indicator parameters as described in paragraph (1). Levels of 
constituents measured in the samples of the RKI bottom ash, RKI fly 
ash, and RKI scrubber water blowdown that do not exceed the levels set 
forth in paragraph (1) can be considered non-hazardous after all four 
sets of sampling data meet the levels listed in paragraph (1).
    The second part of the verification testing program is the annual 
testing of a representative composite sample of the RKI bottom ash, RKI 
fly ash, and RKI scrubber water blowdown for all constituents specified 
in paragraph (1). If any delisting levels are not met in an annual test 
sample, then a second composite sample shall be collected within 10 
days of becoming aware of the failure, and it must be analyzed 
expeditiously for the TCLP constituent(s) that exceeded Delisting 
Levels.
    If the annual testing of the wastes, and the retest, do not meet 
the delisting levels in paragraph (1), Eastman must notify EPA 
according to the requirements in paragraph (6). EPA will then take the 
appropriate actions necessary to protect human health and the 
environment as described in paragraph (6). Eastman must provide 
sampling results that support the rationale that the delisting 
exclusion should not be withdrawn.
    The final exclusion is effective upon publication in the Federal 
Register but the change in waste classification as ``non-hazardous'' 
cannot begin until the four quarterly initial verification samples 
comply with the levels specified in paragraph (1). The waste 
classification as ``non-hazardous'' is also not authorized, if Eastman 
fails to perform the testing as specified herein. Should Eastman 
conduct the yearly testing as specified herein, then disposal of RKI 
bottom ash, RKI fly ash, and RKI scrubber water blowdown as delisted 
waste may not occur in the following year(s) until Eastman obtains the 
written approval of EPA.
(4) Changes in Operating Conditions
    Paragraph (4) would allow Eastman the flexibility of modifying its 
processes (for example, changes in equipment or change in operating 
conditions) to improve its treatment processes. However, Eastman must 
prove the effectiveness of the modified process and request approval 
from EPA. Eastman must manage wastes generated during the new process 
demonstration as hazardous waste through verification sampling within 
30 days of start-up.
(5) Data Submittals
    To provide appropriate documentation that the Eastman facility is 
correctly managing the RKI bottom ash, RKI fly ash, and RKI scrubber 
water blowdown, Eastman must compile, summarize, and keep delisting 
records on-site for a minimum of five years. Eastman must keep all 
analytical data obtained pursuant to paragraph (3), including quality 
control information, for five years. Paragraph (5) requires that 
Eastman furnish these data upon request for inspection by any employee 
or representative of EPA or the State of Texas.
    If the exclusion is made final, then it will apply only to 1,000 
cubic yards/year of RKI bottom ash; 750 cubic yards/year of RKI fly 
ash, and 643,000 cubic yards/year (500,000 million gallons) of RKI 
scrubber water blowdown generated at the Eastman facility after 
successful initial verification testing.
    EPA would require Eastman to submit additional verification data 
under any of the following circumstances:
    (a) If Eastman significantly alters the waste treatment system 
except as described in paragraph (4).
    (b) If Eastman uses any new manufacturing or production 
process(es), or significantly changes the current process(es) described 
in its petition; or
    (c) If Eastman makes any changes that could significantly affect 
the composition or type of waste generated.
    Eastman must submit a modification to the petition complete with 
full sampling and analysis for circumstances where the waste volume 
changes and/or additional waste codes are added to the waste stream. 
EPA will publish an amendment to the exclusion, if the changes are 
acceptable.
    Eastman must manage waste volumes greater than 1,000 cubic yards/
year of RKI bottom ash; 750 cubic yards/year of RKI fly ash and 643,000 
cubic yards/year (500,000 million gallons) of RKI scrubber water 
blowdown as hazardous waste until EPA grants a revised exclusion. When 
this exclusion becomes final, the management by Eastman of the RKI 
bottom ash, RKI fly ash, and RKI scrubber water blowdown covered in 
this petition would be relieved from Subtitle C jurisdiction. Eastman 
may not classify the waste as non-hazardous until the revised exclusion 
is finalized.
(6) Reopener
    The purpose of paragraph (6) is to require Eastman to disclose new 
or different information related to a condition at the facility or 
disposal of the waste, if it is pertinent to the delisting. Eastman 
must also use this procedure if the waste sample (and retest, if 
applicable) in the annual testing fails to meet the levels found in 
paragraph (1). This provision will allow EPA to reevaluate the 
exclusion, if a source provides new or additional information to EPA. 
EPA will evaluate the information on which it based the decision to see 
if it is still correct or if circumstances have changed so that the 
information is no longer correct or would cause EPA to deny the 
petition, if presented.
    This provision expressly requires Eastman to report differing site 
conditions or assumptions used in the petition in addition to failure 
to meet the annual testing conditions within 10 days of discovery. If 
EPA discovers such information itself or from a third party, it can act 
on it as appropriate. The language being proposed is similar to those 
provisions found in RCRA regulations governing no-migration petitions 
at Sec.  268.6.
    It is EPA's position that it has the authority under RCRA and the 
Administrative Procedures Act (APA), 5 U.S.C. 551 (1978) et seq., to 
reopen a delisting decision. EPA may reopen a delisting decision when 
it receives new information that calls into question the assumptions 
underlying the delisting.
    EPA believes a clear statement of its authority in delisting is 
merited in light of EPA's experience. See the Federal Register notice 
regarding Reynolds Metals Company at 62 FR 37694 (July 14, 1997) and 62 
FR 63458 (December 1, 1997) where the delisted waste leached at greater 
concentrations into the environment than the concentrations predicted 
when conducting the TCLP, leading EPA to repeal the delisting. If an 
immediate threat to human health and the environment presents itself, 
EPA will continue to address these situations on

[[Page 58324]]

a case-by-case basis. Where necessary, EPA will make a good cause 
finding to justify emergency rulemaking. See APA section 553(b)(3)(B).

B. What happens if Eastman violates the terms and conditions?

    If Eastman violates the terms and conditions established in the 
exclusion, EPA will start procedures to withdraw the exclusion. Where 
there is an immediate threat to human health and the environment, EPA 
will evaluate the need for enforcement activities on a case-by-case 
basis. EPA expects Eastman to conduct the appropriate waste analysis 
and comply with the criteria explained above in paragraph (1) of the 
exclusion.

V. Final Action

    EPA is approving the delisting petition for three waste streams 
generated at Eastman Chemical's Longview, Texas facility: (1) The RKI 
bottom ash; the RKI fly ash; and the RKI scrubber water blowdown.
    EPA is publishing this rule without prior proposal because we view 
this as a non-controversial exclusion and anticipate no adverse 
comments. However, in the ``Proposed Rules'' section of today's Federal 
Register, we are publishing a separate document that will serve as the 
proposed rule to approve the petition if relevant adverse comments are 
received on this direct final rule. We will not institute a second 
comment period on this action. Any parties interested in commenting 
must do so at this time. For further information about commenting on 
this rule, see the ADDRESSES section of this document.
    If EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. We would address all public comments in a 
subsequent final rule based on the proposed rule. Please note that if 
we receive adverse comment on a paragraph, or section of this rule and 
if that provision may be severed from the remainder of the rule, we may 
adopt as final those provisions of the rule that are not the subject of 
an adverse comment.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this rule is not of general applicability 
and therefore is not a regulatory action subject to review by the 
Office of Management and Budget (OMB). This rule does not impose an 
information collection burden under the