Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Final Exclusion, 72311-72325 [2011-30147]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 76, Number 226 (Wednesday, November 23, 2011)]
[Rules and Regulations]
[Pages 72311-72325]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-30147]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R06-RCRA-2009-0312; SW FRL-9490-9]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is granting a 
petition submitted by Eastman Chemical Corporation--Texas Operations 
(Eastman Chemical) to exclude from hazardous waste control (or delist) 
a certain solid waste. This final rule responds to the petition 
submitted by Eastman Chemical to delist three waste streams generated 
from its rotary kiln incinerator (RKI). 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.
    After careful analysis and evaluation of comments submitted by the 
public, the EPA has concluded that the petitioned wastes are not 
hazardous waste when disposed of in Subtitle D landfills or in the case 
of the scrubber water blowdown, discharged in conjunction with its 
TPDES discharge permit. This exclusion applies to the RKI bottom ash, 
RKI fly ash and RKI scrubber water blowdown generated at Eastman 
Chemical's Longview, Texas facility. Accordingly, this final rule 
excludes the petitioned waste from the requirements of hazardous waste 
regulations under the Resource Conservation and Recovery Act (RCRA) 
when disposed of in Subtitle D landfills or discharged in accordance 
with a TPDES permit but imposes testing conditions to ensure that the 
future-generated wastes remain qualified for delisting.

DATES: Effective Date: November 23, 2011.

ADDRESSES: The public docket for this final rule is located at the U.S. 
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202, and is available for viewing in the 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-2009-0312''. 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: For general information, contact Ben 
Banipal, at (214) 665-7324. For technical information concerning this 
notice, contact Michelle Peace, U.S. Environmental Protection Agency, 
1445 Ross Avenue, Dallas, Texas, (214) 665-7430.

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 delisting?
    C. What are the limits of this exclusion?
    D. How will Eastman Chemical 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 Data
    A. What wastes did Eastman Chemical petition EPA to delist?

[[Page 72312]]

    B. How much waste did Eastman Chemical propose to delist?
    C. How did Eastman Chemical 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. Comments and Responses
V. Statutory and Executive Order Reviews

I. Overview Information

A. What action is EPA finalizing?

    The EPA is finalizing:
    (1) The decision to grant Eastman's petition to have its RKI Fly 
ash, bottom ash and scrubber blowdown water excluded, or delisted, from 
the definition of a hazardous waste, subject to certain continued 
verification and monitoring conditions; and
    (2) to use the Delisting Risk Assessment Software to evaluate the 
potential impact of the petitioned waste on human health and the 
environment. The Agency used this model to predict the concentration of 
hazardous constituents released from the petitioned waste, once it is 
disposed.
    After evaluating the petition, EPA proposed and issued a direct 
final rule, on September 24, 2010 to exclude the Eastman Chemical waste 
from the lists of hazardous wastes under Sec. Sec.  261.31 and 261.32. 
The direct final rule received adverse comments and was subsequently 
withdrawn on November 1, 2010. This decision is based on the proposed 
rule issued on September 24, 2010. The comments received on this 
rulemaking will be addressed as part of this decision.

B. Why is EPA approving this delisting?

    Eastman's petition requests a delisting for the listed hazardous 
wastes associated with three waste streams. Eastman does not believe 
that the petitioned wastes meet the criteria for which EPA listed it. 
Eastman 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 
(HSWA). See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 
260.22(d)(1)-(4). In making the final delisting determination, EPA 
evaluated the petitioned waste against the listing criteria and factors 
cited in Sec. Sec.  261.11(a)(2) and (a)(3). Based on this review, the 
EPA agrees with the petitioner that the waste is nonhazardous with 
respect to the original listing criteria. (If the EPA had found, based 
on this review, that the waste remained hazardous based on the factors 
for which the waste were originally listed, EPA would have proposed to 
deny the petition.) The 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. The 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. The EPA believes that the petitioned waste does not meet 
these criteria. EPA's final decision to delist waste from Eastman's 
facility is based on the information submitted in support of this rule, 
i.e., descriptions of the Rotary Kiln Incinerator, and analytical data 
from the Longview 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 Table 1, 2, and 3 of part 261, 
Appendix IX and the conditions contained herein are satisfied. The 
exclusion applies to 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.

D. How will Eastman Chemical manage the waste if it is delisted?

    Eastman will dispose of the fly ash and bottom ash in an onsite 
Subtitle D landfill. The scrubber water blowdown will be managed in the 
waste water treatment plant (WWTP). The sludge from the WWTP was 
delisted in 2000, and there are new waste codes being managed as part 
of this petition. See Appendix IX to Part 261, Table 1. All management 
occurs on-site and will remain the same after the delisting is granted.

E. When is the final delisting exclusion effective?

    This rule is effective November 23, 2011. The Hazardous and Solid 
Waste Amendments of 1984 amended Section 3010 of RCRA to allow rules to 
become effective in less than six months 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 wastes. These 
reasons also provide 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 two categories of 
States: States having a dual system that includes Federal RCRA 
requirements and their own requirements, and States who have received 
our authorization to make their own delisting decisions.
    Here are the details: We allow states to impose their own non-RCRA 
regulatory requirements that are more stringent than EPA's, under 
section 3009 of RCRA. 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, we urge 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, 
Georgia, Illinois) to administer a 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. If Eastman 
Chemical transports the petitioned waste to or manages the waste in any 
State with delisting authorization, Eastman Chemical must obtain 
delisting authorization from that State before they can manage the 
waste as nonhazardous in the State.

II. Background

A. What is a delisting petition?

    A delisting petition is a request from a generator to EPA or 
another agency with jurisdiction to exclude from the list of hazardous 
wastes, wastes the generator does not consider hazardous under RCRA.

B. What regulations allow facilities to delist a waste?

    Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to 
remove their wastes from hazardous waste control 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 72313]]

any provision of Parts 260 through 266, 268 and 273 of Title 40 of the 
Code of Federal Regulations. Section 260.22 provides generators the 
opportunity to petition the Administrator to exclude a waste on a 
``generator-specific'' basis from the hazardous waste lists.

C. What information must the generator supply?

    Petitioners must provide sufficient information to EPA to allow the 
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, that such factors do not 
warrant retaining the waste as a hazardous waste.

III. EPA's Evaluation of the Waste Data

A. What waste did Eastman Chemical 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.
    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 Fly and Bottom 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.
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 Scrubber Water Blowdown and the Basis
                               for Listing
------------------------------------------------------------------------
          Waste code                       Basis for listing
------------------------------------------------------------------------
F001.........................  Tetrachloroethylene, methylene chloride
                                trichloroethylene, 1,1,1-
                                trichloroethane, carbon tetrachloride,
                                chlorinated fluorocarbons.

[[Page 72314]]

 
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.
D001.........................  Ignitability.
D002.........................  Corrosivity.
D003.........................  Reactivity.
D007.........................  Chromium.
D008.........................  Lead.
D018.........................  Benzene.
D022.........................  Chloroform.
------------------------------------------------------------------------

B. How much waste did Eastman Chemical propose to delist?

    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.

C. How did Eastman Chemical sample and analyze the waste data in 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. The comparison of the results to the maximum allowable TCLP 
delisting levels found in Tables 4, 5, and 6.
    5. Description of the operations and waste received of the RKI.

      Table 4--Analytical Results and Maximum Allowable Delisting Concentrations of the RKI Bottom Ash \1\
----------------------------------------------------------------------------------------------------------------
                                                                                                    Maximum
                                                              Maximum total     Maximum TCLP     allowable TCLP
                        Constituent                              (mg/kg)           (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

[[Page 72315]]

 
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
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................................         0.31E-06       < 5.92E-08          7.46 E-06
(TCDD) 2,3,7,8-............................................                                          mg/kg total
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 5--Analytical Results and Maximum Allowable Delisting Concentrations of the RKI Fly Ash \1\
----------------------------------------------------------------------------------------------------------------
                                                                                                    Maximum
                                                              Maximum total     Maximum TCLP     allowable TCLP
                        Constituent                              (mg/kg)           (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

[[Page 72316]]

 
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................................  ...............    2.8 E-06mg/kg          8.39 E-05
(TCDD) 2,3,7,8-............................................                                          mg/kg total
----------------------------------------------------------------------------------------------------------------
\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 6--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.

IV. Public Comments Received on the Proposed Exclusion

A. Who submitted comments on the proposed rule?

    The EPA received public comments on the September 24, 2010, 
proposed rule from two interested parties, the Environmental Technology 
Council (ETC), and Heritage Environmental. Heritage Environmental 
submitted comments objecting to the absence of the full administrative 
record not appearing electronically on the regulations.gov site on 
October 28, 2010. ETC submitted three rounds of comments dated October 
28, 2010, February 7, 2011, and March 7, 2011. The comments and 
responses are addressed below. Some of the ETC October 28, 2010 
comments requested documents that were not contained in the electronic 
docket. The actual records were sent to the commenter for verification 
purposes and no further comment is warranted.

B. What comments were submitted on the Eastman Delisting Petition?

    Comment 1. The administrative record does not contain the company's 
waste sampling plan, waste analysis plan or analytical test results. 
The commenter cannot determine such basic information as the number and 
representative nature of the waste

[[Page 72317]]

samples. The Federal Register notice ambiguously states that Eastman 
submitted analytical results ``for eight samples for the RKI fly ash 
and RKI bottom ash, and RKI scrubber water blowdown.'' 75 FR at 58319.
    Response 1. The electronic docket for this rule only contained the 
proposed rule and associated materials. The administrative record for 
this rule contains the petition including the sampling and analysis 
plan and results. Requests for items not found online in the electronic 
docket can be requested from the Regional office as described in the 
notice. These documents were provided to the commenter in an electronic 
format on January 7, 2011, after a request for information was made.
    Comment 2. A commenter cannot determine from this general 
description whether the petition is supported by a total of only eight 
sample results, or whether EPA Region 6 meant eight samples for each 
type of waste material, or how many samples of each type of waste were 
collected. In other words, commenters cannot even determine whether the 
minimum number of four samples of each type of waste was collected as 
provided in EPA's Delisting Guidance. There is no information on how 
the samples were collected, what wastes were incinerated prior to 
sampling, whether the samples were representative of wastes processed 
in the unit, and why EPA Region 6 believes the analytical results 
submitted with the petition adequately support the delisting. In 
addition, commenters cannot ascertain basic information on the 
analytical testing that was conducted, such as detection limits and the 
quality assurance/quality control procedures followed by the testing 
laboratory. We cannot even determine whether the analysis was conducted 
by Eastman or a certified third-party laboratory. The commenter cannot 
effectively comment on the delisting without this necessary information 
and an adequate explanation by EPA of the basis for this administrative 
action.
    Response 2. The administrative record for this petition does 
include the information the commenter wanted to verify. Those documents 
were not included in the electronic docket because electronic copies 
were not available at the time of proposal. Requests for items not 
found online in the electronic docket could have been requested from 
the Regional office as described in the notice.
    Comment 3. Surprisingly, the record also does not contain the DRAS 
modeling results or any report on the model inputs, analysis, or 
conclusions, other than the summaries for constituents in the Federal 
Register tables. Most of the description of the DRAS analysis in the 
Federal Register notice is boilerplate that EPA includes in every 
delisting notice, and very little information or analysis is presented 
regarding the subject wastes.
    Response 3. The DRAS results are not available electronically for 
this docket. The administrative record for the rule contains hard 
copies of each DRAS run and the results. Requests for items not found 
online in the electronic docket can be requested from the Regional 
office as described in the notice.
    Comment 4. From the limited information gleaned from the Federal 
Register notices, the commenter must also raise a number of substantive 
concerns about the delisting petition. It appears that only total and 
TCLP analyses were conducted on the subject wastes. As EPA is aware, 
the TCLP was intended to simulate the highly acidic conditions in an 
active municipal landfill with decomposing organic wastes, and yet it 
appears that the subject wastes would be disposed in an on-site 
industrial landfill. No information is provided on the pH conditions of 
the industrial landfill. The leachability of hazardous constituents can 
be highly dependent on pH. If the pH in the landfill receiving the 
waste is not acidic, the leaching of the delisted waste may not perform 
as predicted by the TCLP. For this reason, EPA's Delisting Guidance 
provides for testing of the waste under a range of pH conditions. It 
does not appear that this guidance was followed, and EPA has provided 
no explanation for public comment on why the subject waste was not 
tested under multiple pH conditions. In most of the delisting actions 
by other EPA regions of which the commenter is aware, multiple pH 
testing was required and we cannot determine, and therefore cannot 
comment on, whether and why such testing was not required for this 
delisting petition.
    Response 4. Multiple pH testing was conducted on the materials, 
since the multiple pH test is not a recognized test method or test 
protocol, while mentioned in guidance and performed by most 
petitioners, EPA Region 6 has never published the data gathered from 
these results. In all delistings, only TCLP and totals data are 
reported. Requests for items not found online in the electronic docket 
can be requested from the Regional office as described in the notice.
    Comment 5. In addition, Eastman apparently petitioned to exclude 
waste streams that bear a limited subset of RCRA Hazardous Waste Codes 
(5 F-codes, 2 K-codes, and 12 U-codes). The correct identification of 
these waste codes is critical because EPA then used the basis for 
listing these waste codes to select a relatively short list of 
hazardous constituents for analysis and delisting levels. 75 FR at 
58318. In our experience, it seems highly improbable that these are the 
only codes associated with incinerator operations at a large, complex 
chemical facility. Indeed, the Federal Register notice does disclose 
that the incinerator is RCRA-permitted for ``a variety of D-, F-, U-, 
K-, and P-codes.'' 75 FR at 58317. Apparently many of these coded 
wastes were not considered for purposes of the petition. Given the 
nature of incinerator operations, there is no explanation for how ash 
and scrubber water covered by the petition would not also contain these 
additional waste codes. Indeed, there is literally no information in 
the administrative record for public comment on why the limited set of 
waste codes was selected for the petition, and how EPA will assure that 
only incinerator ash and scrubber water bearing only the 19 selected 
codes will be managed as delisted wastes.
    Response 5. The Eastman Permit limits the types of wastes that are 
treated in its rotary kiln incinerator to those addressed in the 
delisting petition. The operating permit for the rotary kiln 
incinerator restricts and limits the acceptance of wastes which carry 
only these 19 codes. Those 19 waste codes were considered the focus of 
the delisting. Wastes with codes not listed in the Delisting Petition 
are still subject to hazardous waste regulation and are not covered by 
the delisting exclusion.
    Comment 6. Moreover, the Federal Register notice states that 
``there are some production plants that are not owned by Eastman but 
are located on the facility,'' and these unidentified plants also send 
hazardous wastes to the incinerator. 75 FR at 58317. There is no 
information in the record that identifies these facilities, including 
the nature of their production activities, raw materials used, and 
wastes generated. Hazardous wastes are also accepted for processing in 
the incinerator ``from other off-site Eastman facilities.'' Id. Again, 
no information is provided in the administrative record that identifies 
these facilities or describes their processes, raw materials, or 
generated wastes, other than the broad assertion in the Federal 
Register that the wastes are ``similar'' to those generated by Eastman. 
Id. Since the full and accurate description of the hazardous wastes 
processed in the incinerator is critical to

[[Page 72318]]

the proper selection of hazardous constituents for testing and 
delisting analysis, this bare-bones description and lack of supporting 
data and information in the administrative record cannot sustain a 
delisting action.
    Response 6. The Eastman RCRA Permit allows the facility to accept 
wastes from other Eastman facilities and treat in the rotary kiln 
incinerator. The Permit limits the types of wastes that are treated in 
its rotary kiln incinerator to those addressed in the delisting 
petition. The operating permit for the rotary kiln incinerator 
restricts and limits the acceptance of wastes which carry only these 19 
codes. Those 19 waste codes were considered the focus of the delisting. 
Wastes with codes not listed in the Delisting Petition are still 
subject to hazardous waste regulation and are not covered by the 
delisting exclusion.
    Comment 7. The DRAS model was apparently run for only 49 hazardous 
constituents, a surprisingly small number. Under RCRA section 3001(f), 
EPA must consider not only the constituents for which the subject 
wastes were listed, but also additional constituents that may cause the 
waste to be hazardous. Under EPA's Delisting Guidance, the Agency 
usually requires that a delisting petitioner submit analytical results 
and undertake DRAS modeling for literally hundreds more hazardous 
constituents. Again, it somewhat defies credulity that incinerator ash 
and scrubber water from a major, complex chemical plant would contain 
such a small list of only 49 hazardous constituents. Lacking any 
analytical data or other information in the administrative record, 
however, ETC cannot effectively comment on this critical issue. In 
fact, ETC cannot comment on the DRAS modeling in any substantive 
respect because the record contains inadequate information.
    Response 7. The EPA provided the administrative record and its 
supporting documents to the commenter. No additional comments were 
received regarding the DRAS analysis of the waste streams. Generally, 
in all delistings, the DRAS model is run for chemicals which are the 
basis for the waste codes petitioned for in the delisting and any 
additional waste codes detected in the waste. For Eastman specifically, 
there were 19 waste codes evaluated. These waste codes represented more 
than 200 chemical constituents. In its analysis of the data, EPA only 
found that 49 of the chemical constituents were detected in the 
analysis of the three Eastman waste streams. These 49 waste codes were 
evaluated in the DRAS model.
    Comment 8. We also must question why this delisting is being 
considered for incinerator ash and scrubber water that would 
effectively override the RCRA land disposal treatment standards for the 
subject wastes. Eastman has not petitioned to delist hazardous wastes 
which do not meet the listing criteria as generated. There is 
apparently no dispute that the waste materials processed in the 
incinerator are hazardous wastes.
    With respect to those wastes, EPA has already made the 
determination based on lengthy and thorough LDR rulemakings that 
combustion or comparable treatment to the specified treatment levels is 
required to minimize short-term and long-term threats to human health 
and the environment. In addition, EPA has already determined that 
disposal of the treated wastes in a RCRA-permitted landfill that meets 
minimum technology requirements (double synthetic liner, groundwater 
monitoring, etc.) is necessary for adequate public health and 
environmental protection. EPA Region 6 has provided no justification in 
the record for overriding these national determinations, other than the 
conclusory and unsupported assertion in the Federal Register notice 
that the delisting levels will be adequate for such protections. Since 
the petitioner already processes the hazardous wastes in a RCRA-
permitted incinerator and disposes of the residuals in an on-site RCRA-
permitted landfill, we can see no justification for the potential 
lessening of public health and environmental protection from the 
proposed delisting action. The ETC is also concerned that EPA Region 
6's approval of this delisting would contravene Congress's land 
disposal restrictions and treatment requirements in the RCRA statute.
    Likewise, after careful review of the administrative record for the 
Eastman Chemical delisting petition, it is clear that the incinerator 
ash and scrubber water blowdown derived from the incineration of 
numerous F-, K- and U-listed hazardous wastes are not eligible for 
delisting, and that such an action would also violate the RCRA 
treatment requirements and land disposal prohibitions.
    We begin with basic principles--all seemingly ignored in the 
proposed delistings. A waste is eligible for delisting only if that 
waste as generated at a particular facility does not meet any of the 
criteria under which the waste was listed as a hazardous waste. In 
addition, the waste may not contain any other Appendix VIII 
constituents that would cause the waste to be hazardous. RCRA Sec.  
3001(f) and 40 CFR 260.22.
    Likewise, the incinerator residues from the Eastman facility are 
derived from the incineration of numerous waste streams that are F001, 
F002, F003, F005, F039, K009, K010, U001, U002, U031, U069, U107, U112, 
U117, U140, U147, U161, U213 and U359 hazardous wastes. By operation of 
the derived-from rule, the Eastman incinerator residues are these same 
F-, K- and U-listed hazardous wastes. The legal issue raised by the 
Eastman Chemical delisting is whether the original F-, K- and U-listed 
hazardous wastes would meet the applicable treatment requirements prior 
to land disposal if the proposed delisting of the incineration 
residuals were granted.
    However, EPA Region 6 has proposed to delist the incinerator 
residues and allow land disposal at constituent levels that are 
significantly higher than the required treatment standards. There is no 
exception from the land disposal prohibitions for inadequately treated 
residues; in fact, allowing such an exception would obviously 
eviscerate the treatment requirements. The original F-, K- and U-listed 
hazardous wastes cannot be land disposed if the incinerator ash does 
not meet the applicable treatment standards, and a delisting petition 
cannot be used to evade this statutory requirement. For this reason, 
the concentration levels in the incineration residues would have to be 
lower than applicable treatment standards for a delisting to be 
possible.
    The following are examples of F039 treatment levels compared to 
Eastman delisting levels (all concentrations in mg/l TCLP): Barium 21.0 
vs. 100 delisted fly ash; Cadmium 0.11 vs. 0.362 delisted fly ash; 
Chromium 0.60 vs. 5.0 delisted bottom ash and fly ash; Lead 0.75 vs. 
2.45 delisted fly ash; Nickel 11.0 vs. 54.1 delisted bottom ash; Silver 
0.14 vs. 5.0 delisted fly ash and bottom ash.
    Response 8. The Delisting Program and the LDR program serve 
different purposes and because they serve different purposes, different 
standards of compliance apply. As the commenter states ``A waste is 
eligible for delisting only if that waste as generated at a particular 
facility does not meet any of the criteria under which the waste was 
listed as a hazardous waste. In addition, the waste may not contain any 
other Appendix VIII constituents that would cause the waste to be 
hazardous. RCRA Sec.  3001(f) and 40 CFR 260.22.''
    The derived-from rule states that any solid waste generated from 
the treatment, storage, or disposal of a listed hazardous waste, 
including any sludge, spill residue, ash, emission control dust, or 
leachate, remains a hazardous waste

[[Page 72319]]

unless and until delisted. (Sec.  261.3(c)(2)(i)).
    EPA's regulations establish two ways of identifying solid wastes as 
hazardous under RCRA. A waste may be considered hazardous if it 
exhibits certain hazardous properties (``characteristics'') or if it is 
included on a specific list of wastes EPA has determined are hazardous 
(``listing'' a waste as hazardous) because we found them to pose 
substantial present or potential hazards to human health or the 
environment. EPA's regulations in the Code of Federal Regulations (40 
CFR) define four hazardous waste characteristic properties: 
ignitability, corrosivity, reactivity, or toxicity (see 40 CFR 261.21-
261.24).
    In order to list wastes EPA conducts a more specific assessment of 
a particular waste or category of wastes. The Agency will ``list'' them 
if they meet criteria set out in 40 CFR 261.11. As described in Sec.  
261.11, EPA may list a waste as hazardous if the waste: Exhibits any of 
the characteristics, i.e., ignitability, corrosivity, reactivity, or 
toxicity (Sec.  261.11(a)(1)); is ``acutely'' hazardous (e.g., if it is 
fatal to humans or animals at low doses, Sec.  261.11(a)(2)); or it 
contains any of the toxic constituents listed in 40 CFR part 261, 
Appendix VIII and, after consideration of various factors described in 
the regulation, is capable of posing a ``substantial present or 
potential hazard to human health or the environment when improperly 
treated, stored, transported, or disposed of, or otherwise managed'' 
(Sec.  261.11(a)(3)).
    EPA placed a substance on the list of hazardous constituents in 
Appendix VIII if scientific studies have shown the substance has toxic 
effects on humans or other life forms.
    Generally, listing of wastes are not driven by threshold limits 
except in the case of the toxicity characteristic (TC) determination. 
Several of the limits cited by the commenter are the TC limit for the 
constituents stated. If the waste is characteristic, then it can't be 
delisted. The delisting limit is bound by the TC limit.
    In 1984, Congress created EPA's Land Disposal Restrictions (LDR) 
program. The LDR program ensures that toxic constituents present in 
hazardous waste are properly treated before hazardous waste is land 
disposed. Since then, the LDR team has developed mandatory technology-
based treatment standards that must be met before hazardous waste is 
placed in a landfill. These standards help minimize short and long-term 
threats to human health and the environment, which directly benefits 
local communities where hazardous waste landfills are located. The LDR 
Program does not determine if a waste is hazardous. It regulates how 
hazardous wastes are to be managed at the time of disposal.
    We do believe that the concentrations specified as delisting levels 
do minimize short term and long term threats to human health and the 
environment. Whereas, some LDR treatment standards are based on the 
best demonstrated technology, the delisting exit levels are risk based 
standards. We have not stated that Eastman is not subject to the LDR 
standards because the waste was not delisted at the point of 
generation, Eastman may submit a variance to the treatment standards as 
described in Sec.  268.42(b) or 268.44 in order to ensure compliance 
with the LDR standards, but the Delisting decision may still be made. 
However, wastes destined for disposal in Subtitle C landfills are 
subject to the LDR limits. Therefore, wastes when delisted must comply 
with all applicable Subtitle D landfill requirements.
    Comment 9. The ETC also notes that the DRAS software used by EPA 
for these delistings was apparently a new Version 3, and that the 
changes from Version 2 may not previously have been subject to public 
notice and opportunity for comment. We are in the process of 
determining all the changes incorporated into Version 3 and the effect 
of those changes on delisting levels and the protection of human health 
and the environment. The ETC requests that EPA Region 6 clarify the 
changes made in Version 3, the effect of those changes on the pending 
delistings, and the agency's rationales for those changes to allow for 
effective public comment.
    Response 9. As discussed in the Eastman Direct Final Rule and 
Proposal, the changes made between version 2 of DRAS and Version 3 of 
DRAS are described in 73 FR 28777. In July 2007, U.S. EPA prepared an 
update of the DRAS by releasing version 3.0. The update addressed a 
number of issues with version 2 and improved the fate and transport 
modeling. To estimate the downgradient concentrations of waste leachate 
constituents released into groundwater, the DRAS utilizes conservative 
dilution attenuation factors (DAFs) taken from Monte-Carlo applications 
of U.S. EPA's Composite Model for Leachate Migration with 
Transformation Products (CMTP). DRAS 3.0 includes all new DAFs from new 
CMTP modeling runs. The new modeling takes advantage of: Updated 
saturated flow and transport modules; a new surface impoundment module 
and database; model corrections for unrealistic scenarios (like water 
tables modeled above the ground surface); new isotherms for metals; and 
a revised recharge and infiltration database. As a result, many of the 
DAFs used in previous versions of DRAS have changed. Further affecting 
the groundwater calculation, the relationships for determining scaling 
factors used to scale the DAFs to account for very small waste streams 
have been updated to reflect the new database information on landfills 
and surface impoundments and were also corrected for a metric 
conversion of cubic meters to cubic yards. The new scaling factors are 
generally higher than those of previous versions of DRAS, resulting in 
higher estimated dilution and attenuation at lower waste volumes for 
both landfills and surface impoundments. The new metals DAFs, based on 
MINTEQA2 isotherms, can vary as a function of the landfill leachate 
concentration. This means that the effective DAF (including a scaling 
factor adjustment, if necessary) for an input concentration may differ 
significantly with the effective DAF that corresponds to the allowable 
leachate concentration. DRAS 3.0 now displays the DAFs in both the 
forward calculated risk tables and the tables of maximum allowable 
concentrations so that the difference is evident to the user. The 
isotherms that vary by leachate concentration are represented in DRAS 
by a look-up table with leachate concentrations paired with DAFs. In 
the event that an actual concentration input to DRAS lies between two 
values in the table, or an allowable receptor concentration lies 
between two calculated receptor concentrations from the table, DRAS 3.0 
will linearly and proportionally extrapolate between the two values to 
determine the corresponding exposure or allowable leachate 
concentration. EPA changed the calculation for particle emissions 
caused by vehicles driving over the waste at the landfill to provide a 
more realistic estimate. The estimate depends upon the number of trips 
per day landfill vehicles make back and forth over the waste. In 
previous versions of DRAS, this value was conservatively set at a 100 
trips per day, corresponding with an extremely high annual waste 
volume. In DRAS 3.0, a minimum number of trips per day was 
conservatively assumed from the Subtitle D landfill survey (7.4 trips 
per day at the 95th percentile of values reported). The number of trips 
per day specific to the actual waste volume is then added to the 
minimum to reflect

[[Page 72320]]

the impact of very large waste streams. This will considerably reduce 
the particle emission estimate for wastes generated at all but the 
largest annual volumes. EPA added a conversion from English to metric 
tons to the calculation of particle emissions from waste unloading, 
resulting in a decrease of roughly 10% over previous versions of DRAS. 
We also made a unit-conversion factor correction to part of the air 
volatile pathway which will reduce the impact to the receptor. An error 
in the back-calculation for fish ingestion pathway was corrected to 
reflect the difference between freely dissolved and total water column 
waste constituent concentrations. For the estimation of risk and 
hazard, we made a number of updates to the forward and back 
calculations. Previous versions of DRAS assumed that only 12.5% of 
particles are absorbed by the receptor's respiratory system. This is no 
longer necessary as toxicity reference values for inhalation currently 
recommended by U.S. EPA relate risk or hazard directly to exposure 
concentration. DRAS 3.0 does not include the 12.5% reduction. This 
change significantly increases estimated risks due to particle 
inhalation and lowers corresponding allowable concentrations. DRAS 
Version 3.0.47 has a reformulated back calculation of the allowable 
leachate concentrations from exposure due to contaminants volatilized 
during household water use to match the forward calculation of risk. In 
previous versions of DRAS, the forward calculation summed the risks 
from exposure to all three evaluated household compartments (the 
shower, the bathroom, and the whole house) while the back calculation 
based the maximum allowable level on the single most conservative 
compartment. The DRAS 3.0 maximum allowable leachate concentrations are 
now based on the combined impact of all three compartments. The house 
exposure was also expanded to a 900 minute (15 hour) daily exposure to 
reflect non-working residents who have an overall 16 hour in-house 
exposure (the other 1 hour is spent in the shower and bathroom). EPA 
resolved the inconsistencies with the way DRAS chooses limiting 
pathways for specific waste constituents in DRAS 3.0. EPA checked all 
toxicity reference values in DRAS and updated where necessary. 
Approximately 180 changes were made to the toxicity reference values in 
DRAS based on data in IRIS, PPRTV, HEAST, NCEA, CalEPA and other 
sources. Some route-to-route extrapolations of oral toxicity data to 
inhalation exposure have been returned to DRAS 3.0 if consistent with 
Agency policy. See U.S. EPA 2006 for full accounting of this 
methodology. The same reference also includes discussions of toxicity 
reference choices where the multiple values were available or where the 
toxicity reference values were specific to particular species of 
constituents.
    Comment 10. On January 18, 2011, President Barack Obama signed 
Executive Order 13563 to ``improve regulation and regulatory review'' 
in his Administration. In the section on public participation in the 
regulatory process, President Obama stated that ``each agency shall 
afford the public a meaningful opportunity to comment through the 
internet on any proposed regulation, with a comment period that should 
generally be at least 60 days.''
    Response 10. The Eastman Direct Final Rule published in the Federal 
Register on September 24, 2010, several months before President Obama's 
Executive Order was issued. The EPA Region 6 will abide by the order 
issued on January 18, 2011 in future delisting actions.
    Comment 11. Obviously, our concern is that these supporting 
materials may have been generated subsequent to the proposed delisting, 
and therefore could not have been relied on by EPA in developing the 
proposed rule. We request that EPA Region 6 clarify whether the DRAS 
output files included in the administrative record were the output 
files relied on for the proposed rule, how this could be possible given 
the dates of the output files, and whether other output files existed 
prior to proposal of the delisting that were not included in the 
administrative record.
    Response 11. The DR