Hazardous Waste Management System; Proposed Exclusion for Identifying and Listing Hazardous Waste, 3053-3066 [2022-00728]
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Federal Register / Vol. 87, No. 13 / Thursday, January 20, 2022 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
[EPA–R10–RCRA–2018–0661; FRL–9414–
01–R10]
Hazardous Waste Management
System; Proposed Exclusion for
Identifying and Listing Hazardous
Waste
Environmental Protection
Agency (EPA).
ACTION: Proposed rule and request for
comment.
AGENCY:
The Environmental Protection
Agency (EPA) (also, ‘‘the Agency’’ or
‘‘we’’ in this preamble) is proposing to
grant a petition submitted by Emerald
Kalama Chemical, LLC, in Kalama,
Washington to exclude (or ‘‘delist’’) up
to 3,500 cubic yards of U019 (benzene)
and U220 (toluene) industrial
wastewater biological solids (IWBS) per
year from the list of federal hazardous
wastes under the Resource Conservation
and Recovery Act.
DATES: Comments must be received on
or before February 22, 2022. Requests
for an informal hearing must reach the
EPA by February 4, 2022.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R10–
RCRA–2018–0661 by one of the
following methods:
• www.regulations.gov: Follow the
on-line instructions for submitting
comments.
• Mail: To Dr. David Bartus, Land,
Chemicals and Redevelopment Division,
EPA, Region 10, 1200 6th Avenue, Suite
155, M/S 15–H04, Seattle, Washington
98101.
• Hand Delivery: To Dr. David Bartus,
Land, Chemicals and Redevelopment
Division, EPA, Region 10, 1200 6th
Avenue, Suite 155, M/S 15–H04,
Seattle, Washington 98101. Such
deliveries are only accepted during
normal hours of operation. Please
contact Dr. David Bartus at (206) 553–
2804.
Instructions: Direct your comments to
Docket ID No. EPA–R10–RCRA–2018–
0661. The EPA’s policy is that all
comments received will be included in
the public docket without change and
may be made available online at
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 www.regulations.gov
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SUMMARY:
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or email. The www.regulations.gov
website is an ‘‘anonymous access’’
system, which means the EPA will not
know your identity or contact
information unless you provide it in the
body of your comment. If you send an
email comment directly to the EPA
without going through
www.regulations.gov your email 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, the EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
physical media you submit. If the EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, the 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.
Any person may request an informal
hearing on this proposed decision by
filing a request with Timothy Hamlin,
Director, Land, Chemicals and
Redevelopment Division, EPA, Region
10, 1200 6th Ave., Suite 155, M/S 15–
H04, Seattle, Washington 98101. The
request must contain the information
prescribed in 40 Code of Federal
Regulations (CFR) 260.20(d).
Docket: All documents in the docket
are listed in the www.regulations.gov
index.1 Although listed in the index,
some information may not be 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 form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hard copy at
the RCRA Records Center, 16th floor,
U.S. EPA, Region 10, 1200 6th Avenue,
Suite 155, M/S 16–C09, Seattle,
Washington 98101. This facility is open
from 8:30 a.m. to 4:00 p.m., Monday
through Friday, excluding legal
holidays. We recommend you telephone
David Bartus at (206) 553–2804 before
visiting the Region 10 office. The public
may copy material from the regulatory
docket at 15 cents per page.
1 The input files for the Delisting Risk Assessment
Software (DRAS 4.0) used in support of this
proposed rulemaking are in a file format not
supported by EPA’s electronic docket management
system. EPA has provided ‘‘screen shot’’ images of
the input data in Portable Document Format (.pdf)
files. Commentors interested in the actual DRAS 4.0
input files may request them through the EPA
contacts listed above.
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Dr.
David Bartus, EPA, Region 10, 1200 6th
Avenue, Suite 155, M/S 15–H04,
Seattle, Washington 98101; telephone
number: (206) 553–2804; fax number
(206) 553–8509; email address:
bartus.dave@epa.gov.
As discussed in Section V of this
preamble, the Washington State
Department of Ecology is evaluating the
Petitioner’s petition under state
authority. Information on Ecology’s
action may be found at https://ecology.
wa.gov/Regulations-Permits/Permitscertifications/Industrial-facilitiespermits/Emerald-Kalama-Chemical.
SUPPLEMENTARY INFORMATION: The
information in this section is organized
as follows:
FOR FURTHER INFORMATION CONTACT:
I. Overview Information
II. Background
A. What is the listed waste associated with
this Petition?
B. What is a delisting petition?
C. What factors must the EPA consider in
deciding whether to grant a delisting
petition?
III. EPA’s Evaluation of the Waste
Information and Data
A. What waste did the Petitioner petition
the EPA to delist?
B. How does the Petitioner generate the
waste?
C. How does the Petitioner sample and
analyze the waste?
D. What were the results of the EPA’s
analysis of the Petitioner’s waste?
E. How did the EPA evaluate the risk of
delisting this waste?
F. What are the EPA’s proposed findings
regarding the petitioned waste?
IV. Conditions for Exclusion
A. How will the Petitioner manage the
waste if it is delisted?
B. What are the maximum allowable
concentrations of hazardous constituents
in the waste?
C. How frequently must the Petitioner test
the waste?
D. What data must the Petitioner submit?
E. What happens if the Petitioner fails to
meet the conditions of the exclusion?
F. What must the Petitioner do if the
process changes?
V. When would the EPA finalize the
proposed delisting exclusion?
VI. How would this action affect states?
VII. Statutory and Executive Order Reviews
I. Overview Information
The EPA is proposing to grant the
petition submitted by Emerald Kalama
Chemical, LLC located in Kalama,
Washington to exclude (or ‘‘delist’’) an
annual volume of up to 3,500 cubic
yards of U019 (benzene) and U220
(toluene) industrial wastewater
biological solids (IWBS) hazardous
waste per year from the list of hazardous
waste set forth in 40 CFR 261.33. The
Petitioner claims that the petitioned
waste does not meet the criteria for
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which the EPA listed it, and that there
are no additional constituents or factors
which could cause the waste to be
hazardous.
Based on our review described in
Section III of this preamble, we propose
to make a determination that the
petitioned waste is non-hazardous with
respect to the listed waste codes that
originally applied. As part of our
supporting analysis, we reviewed the
description of the process which
generates the waste and the analytical
data submitted by the Petitioner. We
believe that the petitioned waste does
not meet the criteria for which the waste
was originally listed, that they do not
exhibit any hazardous waste
characteristic, and that there are no
other factors which might cause the
waste to be hazardous. Accordingly, the
EPA is proposing to find the petitioned
waste may be safely managed as nonlisted hazardous waste. The EPA notes
that while the burden of demonstrating
that a delisted waste does not also
exhibit a hazardous characteristic
remains with the facility, data provided
by the Petitioner demonstrate that the
candidate waste does not exhibit a
hazardous characteristic.
II. Background
A. What is the listed waste associated
with this petition?
The EPA published an amended list
of discarded commercial chemical
products, off-specification species,
container residues and spill residues
thereof on November 25, 1980 (45 FR
78532), as part of its final and interim
final regulations implementing section
3001 of Resource Conservation and
Recovery Act (RCRA), 42 U.S.C. 6921.
The EPA has amended this list several
times and published it in 40 CFR
261.33.
We list these wastes as hazardous
because: (1) They typically and
frequently exhibit one or more of the
characteristics of hazardous wastes
identified in 40 CFR part 261 subpart C
(that is, ignitability, corrosivity,
reactivity, and toxicity) or (2) they meet
the criteria for listing contained in
261.11(a)(2) or (3).
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B. What is a delisting petition?
Individual waste streams may vary
depending on raw materials, industrial
processes, and other factors. Thus,
while a waste from a source listed in the
regulations as ‘‘hazardous’’ is by
definition hazardous, a specific waste
from an individual generating facility
and from a source meeting the listing
description may produce wastes that
vary significantly from the wastes the
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EPA considered in establishing the
waste listing.
A procedure to exclude or delist a
waste is provided in 40 CFR 260.20 and
260.22 which allows a person or a
facility to submit a petition to the EPA
or to an authorized state demonstrating
that a specific waste from a particular
generating facility should not be
regulated as hazardous.2
In a delisting petition, the Petitioner
must show that a waste does not meet
any of the criteria for listed wastes in 40
CFR 261.11 and that the waste does not
exhibit any of the hazardous waste
characteristics of ignitability, reactivity,
corrosivity, or toxicity. The Petitioner
must present sufficient information for
the EPA to decide whether any factors
in addition to those for which the waste
was listed warrant retaining it as a
hazardous waste. (See 40 CFR 260.22
and 42 U.S.C. 6921(f).) The EPA’s basis
for originally listing the wastes
associated with this petition may be
found at 45 FR 78532.
If a delisting petition is granted, the
specific waste identified in the delisting
will be excluded from the associated
lists of hazardous waste in 40 CFR part
261 subpart D so long as conditions in
the delisting are met. A waste which is
so excluded, however, may still exhibit
a characteristic and thus be a hazardous
waste by operation of 40 CFR part 261
subpart C. The EPA notes that while the
burden of demonstrating that a delisted
waste does not also exhibit a hazardous
characteristic remains with the facility,
the data provided by the Petitioner
demonstrate that the candidate wastes
do not exhibit a hazardous
characteristic.
C. What factors must the EPA consider
in deciding whether to grant a delisting
petition?
In reviewing this petition, we
considered the original listing criteria
and the additional factors required by
the Hazardous and Solid Waste
Amendments of 1984 (HSWA). See
section 222 of HSWA, 42 U.S.C. 6921(f),
and 40 CFR 260.22(d)(2) through (4). We
evaluated the petitioned waste against
the listing criteria and factors cited in 40
CFR 261.11(a)(2) and (3).
In addition to the criteria in 40 CFR
260.22(a), 261.11(a)(2) and (3), 42 U.S.C.
6921(f), and in the background
documents for the listed wastes, the
EPA also considered any factors
2 Washington State’s promulgated regulations at
WAC 173–303–910(3) correspond to the Federal
regulation. However, Washington State has not
received final authorization to implement these
regulations in lieu of the Federal program. As such,
they are effective concurrent with 40 CFR 260.20
and 260.22 on a state-only basis.
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(including additional constituents) other
than those for which we listed the waste
if these additional factors could cause
the waste to be hazardous.
Our proposed decision to grant the
petition to delist the waste from the
Petitioner’s Kalama, Washington facility
is based on our evaluation of the waste
for factors or criteria which could cause
the waste to be hazardous. These factors
included: (1) Whether the waste is
considered acutely toxic; (2) the toxicity
of the constituents; (3) the concentration
of the constituents in the waste; (4) the
tendency of the constituents to migrate
and to bioaccumulate; (5) the
persistence in the environment of any
constituents once released from the
waste; (6) plausible and specific types of
management of the petitioned waste; (7)
the quantity of waste produced; and (8)
waste variability.
The EPA must also consider as
hazardous wastes mixtures containing
listed hazardous wastes and wastes
derived from treating, storing, or
disposing of listed hazardous waste. See
40 CFR 261.3(a)(2)(iv) and (c)(2)(i),
called the ‘‘mixture’’ and ‘‘derivedfrom’’ rules, respectively. Mixture and
derived-from wastes are also eligible for
exclusion but remain hazardous until
excluded.
III. EPA’s Evaluation of the Waste
Information and Data
A. What waste did the Petitioner
petition the EPA to delist?
The Petitioner manufactures various
organic chemicals used as artificial
flavors and fragrances, food
preservatives, plasticizers, and
intermediates at their facility in Kalama,
Washington. Most of the chemicals
produced are derived from toluene or
from the oxidation products of toluene,
including benzoic acid and
benzaldehyde. Additional products are
produced as derivatives of benzoic acid
and benzaldehyde. Products are
typically purified by continuous or
batch distillation. In conjunction with
its manufacturing processes, the
Petitioner operates an industrial
wastewater treatment system, consisting
of an anaerobic digestion process and an
aerobic oxidation system, both of which
are biological treatment systems very
similar to municipal wastewater
treatment systems. This treatment
system produces industrial wastewater
treatment plant biological solids (IWBS).
As documented in the Petitioner’s
delisting petition, the IWBS designates
as U019 (benzene) and U220 (toluene).
The Petitioner has requested that up to
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3,500 cubic yards of IWBS be excluded
from the list of hazardous wastes.3
B. How does the Petitioner generate the
waste?
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The Petitioner’s petition documents
that its industrial wastewater treatment
system from which IWBS are derived
manages wastewaters from multiple
sources within the facility. The first
source consists of contaminated
groundwater from an extensive
groundwater recovery system to prevent
contaminated water from leaving the
plant site. Water pumped from the
North Impact Area (NIA), West Impact
Area (WIA), and Intermediate Sand
Recovery Wells (ISRW) contains
commercial product toluene from
historical releases and therefore the
IWBS carry the listed dangerous waste
code U220 (toluene). Historical data
from May 2013 through April 2021
indicates that an average of 31.5 million
gallons per year with a maximum of
38.6 million gallons per year of
contaminated groundwater was treated
in the wastewater treatment unit
(WWTU) that generates IWBS. See
Docket Entries starting with suffixes ‘‘–
DRAFT–0056’’ through ‘‘–DRAFT–
0063.’’ The second source consists of
stormwater that falls on the
manufacturing process areas of the
facility, which may become
contaminated by spills or releases of the
various raw materials, intermediates,
products, or byproducts of its
manufacturing operations. The third
source consists of process wastewater
from manufacturing processes. These
second and third sources may be
impacted by trace amounts of pure
product benzene from de minimus spills
that are captured by the treatment
system; therefore, the IWBS from the
second and third source categories carry
the listed dangerous waste code U019
(benzene).
The Petitioner provided the EPA with
a detailed process flow diagram (Docket
Entry 0–017–050–Model–BIOX Plant
Process Flow Diagram–DRAFT–0029) of
the overall wastewater management
system that documents the source of all
wastewaters from which the candidate
IWBS are generated and the various
management processes that are applied
to the wastewaters. Generally, process
wastewater expected to have higher
3 The delisting petition submitted by the
Petitioner requested exclusion of a waste volume
different than those cited in this proposed
rulemaking. The EPA notes that the requested
quantity of waste in the delisting petition itself was
expressed on a mass (ton) basis rather than the
volume basis in this proposed rulemaking. See
further discussion of this point in Section C of this
preamble.
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quantities of organic constituents from
process units is routed to either the
anaerobic digesters (ANTS) or to the
aerobic digesters (BIOX), depending
upon the types and concentrations of
chemicals present. The effluent from the
ANTS is routed to the BIOX for final
treatment. Groundwater and
stormwater 4 with a low chemical
oxygen demand (COD) are routed to the
aerobic digesters (BIOX). This process
flow arrangement, including flexibility
to re-route wastewaters depending on
their chemical makeup, ensures that
concentrated free product from
manufacturing process wastes or from
spills is not introduced into the balance
of the wastewater treatment system, and
that the concentration of waste
constituents entering the treatment
system is maintained in a range that
fosters microbial degradation.
Wastewaters from the American
Petroleum Institute (API) phase
separator are then routed to the aerobic
digester system. The use of the API
separator for wastewaters expected to
have higher levels of organic
constituents helps ensure that
significant excursions (variations) in
waste composition do not adversely
affect performance of the wastewater
treatment system. The effluent of the
ANTS system is then routed to the
aerobic digester and sludge filtration
systems. Groundwater and stormwater
expected to have lower COD levels
bypass the API separator and are fed
directly to the aerobic digester treatment
system. This arrangement of the overall
wastewater management system from
which IWBS is generated is expected to
operate consistently and effectively,
such that characterization data of the
influent wastewater and the resulting
IWBS provided by the Petitioner are
representative of on-going operation of
the system.
C. How does the Petitioner sample and
analyze the waste?
The Petitioner regularly collected and
analyzed samples of the IWBS for
various constituents on a monthly,
quarterly, or annual basis from January
1998 through April 2015, when the
delisting petition was submitted.5 These
4 The Petitioner also provide the EPA with a map
of the facility indicating areas where stormwater is
collected from various areas of the facility. See
Docket Entry 3–002–000 Storm Water Collection
Map. DRAFT–0030.
5 The EPA notes that these data were gathered
well before the Petitioner’s submission of their
delisting petition, and for technical and regulatory
purposes other than delisting. Therefore, these data
do not exactly match the information needs of the
delisting process, although they do provide
substantial and valuable characterization of the
IWBS waste stream. As noted in the balance of this
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data are summarized in Table A–1 in
Appendix A of the petition. See Docket
Entry EPA–R10–RCRA–2018–0661–
DRAFT–0034. Hazardous constituents
for which routine analytical data are
presented in the Petitioner’s petition
include benzene and toluene, and a
suite of metals including copper, nickel,
zinc, cobalt, lead, cadmium, arsenic,
selenium, chromium, molybdenum,
mercury and barium. Metals values
were generally consistent over the
measurement period, with copper
values showing over an order of
magnitude difference between the
highest and lowest values.
Toluene was detected in one sample
of IWBS between 1998 and 2014 at a
concentration of 69 micrograms per
kilogram (ppb) reported on a dry weight
basis, with thirteen non-detect values
reported with detection limits ranging
from 44 to 3,800 parts per billion.
Benzene was not detected during this
period, with fifteen samples reported as
non-detect with detection limits ranging
from 44 to 3,800 parts per billion.
The Petitioner had two Toxicity
Characteristic Leaching Procedure
(TCLP) analyses performed on the IWBS
in 2000 and in 2014. The results were
consistent and demonstrated that the
IWBS do not exhibit the toxicity
characteristic. The data are presented in
Table A–2 in Appendix A of the
petition. See Docket Entry EPA–R10–
RCRA–2018–0661–DRAFT–0034.
The EPA developed preliminary
delisting levels for the IWBS using the
EPA’s Hazardous Waste Delisting Risk
Assessment Software (DRAS) Version
3.0 and provided them to the Petitioner.
The procedure for doing so is described
in Enclosure 1 to Docket Entry EPA–
R10–RCRA–2018–0661–DRAFT–0044,
with the results provided in Docket
Entry EPA–R10–RCRA–2018–0661–
DRAFT–0046. These preliminary
delisting levels were based on initial
estimates of the project waste generation
volume. These data were used by the
Petitioner and the EPA as an initial
indication of the required level of data
quality, particularly the sensitivity
required for laboratory analytical
methods, for waste characterization
sampling data.
Subsequent to submission of its
delisting petition, the EPA requested
certain additional data from the
Petitioner. First, to ensure data on the
petitioned waste annual generation
volume could be converted from a mass
to a volume basis necessary for input to
preamble, the Petitioner submitted supplemental
characterization data as necessary to fully
characterize the IWBS waste stream for purposes of
delisting.
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the DRAS model, the Petitioner
provided data documenting the density
of the IWBS as 0.67 tons/cubic yard,
based on the average of six samples of
IWBS (Docket Entries IWBS Delisting
email 030302020–DRAFT–0035 and
EPA–R10–RCRA–2018–0661–DRAFT–
0045).
Second, based on its evaluation of its
initial DRAS model runs, the EPA
identified that cobalt could not be
shown to satisfy the calculated delisting
levels based solely on the total data
documented in the petition and a
bounding assumption that all
constituents would leach from the waste
in the absence of an analysis of a TCLP
extract of the waste. See Docket Entries
DRAS–3–COCs–12202018–DRAFT–
0052, DRAS–3–COCs–12272018–
DRAFT–0053, DRAS–3–inputs–
12202018–DRAFT–0054 and DRAS–3–
inputs–12272018–DRAFT–0055. The
EPA requested that the Petitioner
provide supplemental data for cobalt
that documented paired data for both
total and TCLP extract analysis. (See
Docket Entries IWBS Supplemental
Information–DRAFT–0037, Biosolids
Analytical Data 031919–DRAFT–0036
and IWBS Supplemental Information
email 04172019–DRAFT–0038). The
Petitioner submitted supplemental data
for both total and TCLP extract analysis
for copper, nickel, zinc, cobalt, and
barium, and total data for benzene via
email 3/3/2020 (See Docket Entries
IWBS Delisting email 030302020
DRAFT–0035, RE_IWBS Supplemental
Information email 04242019DRAFT–
0041, K1901520–DRAFT–0040, RE_
IWBS Supplemental Information email
04242019–DRAFT–0041 and K1903215–
DRAFT–0042).
The data results showed that copper,
nickel, zinc, and barium met the initial
DRAS model run limits for the TCLP
extract of the waste; and cobalt, copper,
nickel, zinc, and barium met the initial
DRAS model run for the total
concentration of the waste.
D. What were the results of the EPA’s
analysis of the Petitioner’s waste?
The first step in the EPA’s analysis of
the petitioned waste was to establish a
list of potential constituents of concern
(COCs) to guide further analysis of the
waste and to establish initial delisting
exclusion criteria. The EPA applied four
criteria for identifying potential
constituents of concern: (1) Whether the
constituent is used as an input to, or
created as an intermediate, byproduct or
finished product from the Petitioner’s
production processes; (2) whether the
IWBS designates as hazardous for a
particular constituent; (3) the expected
frequency of occurrence in the IWBS;
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and (4) the toxicity of the constituent of
concern.
The EPA first considered organic
COCs. Based on the hazardous waste
codes associated with wastewater that
ultimately results in generation of IWBS
(D018, U019, U220, U154, and U001),
the EPA determined that benzene,
toluene, methanol and acetaldehyde are
COCs.6 The EPA notes that benzene is
generally regarded as difficult to treat
and is an excellent indicator of overall
performance of the WWTU processes,
and the ability of the WWTU to
effectively treat other organic
constituents other than benzene. Based
on principle products of the Petitioner’s
production processes, the EPA
determined that five additional organic
constituents—benzaldehyde, benzoic
acid, formic acid, benzyl alcohol, and
phenol—should be retained as COCs in
the IWBS. While at least some of these
constituents are associated with
products for human consumption or
exposure, they exhibit a level of toxicity
that warrants retention as COCs for
purposes of evaluating the candidate
waste stream.
Several additional organic
constituents are associated with the
Petitioner’s production processes.
However, they are associated with
products for human consumption or
exposure, such as food preservatives
and vitamins, fragrances and perfumes,
and sunscreens, and do not exhibit a
degree of toxicity that warrants
retention as COCs (Docket Entry EPA–
R10–RCRA–2018–0661–DRAFT–0022).
In addition, most, if not all, of these
additional organic constituents are
highly amenable to biological treatment
in the WWTU and are not expected to
be present in the IWBS at levels
significantly below health-based levels
that would be of concern in the delisting
process.
The Petitioner’s production process
uses a range of catalysts, including
several metallic catalysts that include
cobalt, copper and nickel. On this basis,
cobalt, copper and nickel are identified
as constituents of concern. Although
these three metals are not hazardous
constituents, they are retained as ‘‘other
6 As noted in the delisting petition, IWBS
designate only for U019 (benzene) and U220
(toluene) because, due to an exception to RCRA’s
derived from rule, certain codes applicable to the
wastewater do not carry through to the IWBS.
However, as part of its evaluation of the IWBS
waste stream and identification of COCs, the EPA
also considered hazardous waste codes applicable
to the wastewater managed by the WWTU
generating IWBS. Although the F003 waste code
applies to wastewater managed by the WWTU, EPA
did not retain acetone as a constituent of concern
on the basis that the process information provided
by Emerald does not provide any evidence that
acetone is associated with this waste stream.
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factors’’ (as discussed in Section I of this
preamble) that may cause the waste to
be retained as hazardous. Other metallic
constituents reported to have been
detected in the IWBS waste stream do
not have a clear source related to the
Petitioner’s organic manufacturing
process. These constituents include
barium and zinc. Barium is a hazardous
constituent and is present at detectable
levels in the IWBS so barium is retained
as an ‘‘other factor’’ that may cause the
waste to be retained as hazardous. Zinc
is a common contaminant in industrial
wastewater and is found in the IWBS at
concentrations as high as 1,350 ppm dry
weight, so zinc is retained as an ‘‘other
factor’’ that may cause the waste to be
retained as hazardous.
In the Petitioner’s production process,
cobalt is used as a catalyst in both its
metallic form (sponge cobalt) and as
cobalt acetate. The acetate functional
group is expected to be readily degraded
in the WWTU, leaving metallic cobalt in
the IWBS. Further, cobalt acetate is
soluble in water, so that any remaining
cobalt acetate that is not degraded to
metallic cobalt in the WWTU is likely
to partition (separate) into the effluent
wastewater managed separately from the
IWBS. Thus, all forms of cobalt are
considered to be metallic for purposes
of the delisting evaluation of the IWBS.
The final list of constituents of
concern evaluated in the delisting
process are documented in Table 2 of
this preamble.
E. How did the EPA evaluate the risk of
delisting this waste?
For this delisting determination, we
evaluated the risk that the waste would
be disposed of as a non-hazardous waste
in an unlined landfill which the EPA
considers a reasonable worst-case
mismanagement scenario. In evaluating
this scenario, we considered transport of
waste constituents through ground
water, surface water and air. We
evaluated the Petitioner’s analysis of
petitioned waste using the DRAS
software to predict the concentrations of
hazardous constituents that might be
released from the petitioned waste and
to determine if the waste would pose a
threat to human health and the
environment. The DRAS software and
associated documentation can be found
at www.epa.gov/hw/hazardous-wastedelisting-risk-assessment-software-dras.
To predict the potential for release to
groundwater from landfilled wastes and
subsequent routes of exposure to a
receptor, the DRAS uses dilution
attenuation factors derived from the
EPA’s Composite Model for leachate
migration with Transformation
Products. From a release to ground
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water, the DRAS considers three
potential routes of exposure to a human
receptor: Ingestion of contaminated
groundwater; inhalation from
groundwater while showering; and
dermal contact from groundwater while
bathing.
From a release to surface water by
erosion of waste from an open landfill
into storm water run-off, DRAS
evaluates the exposure to a human
receptor from fish ingestion and
ingestion of drinking water. From a
release of waste particles and volatile
emissions to air from the surface of an
open landfill, DRAS considers three
potential routes of exposure to a human
receptor: Inhalation of volatile
constituents; inhalation of particles; and
air deposition of particles on residential
soil and subsequent ingestion of the
contaminated soil by a child. The
3057
technical support document and the
user’s guide to DRAS are available at
https://www.epa.gov/hw/hazardouswaste-delisting-risk-assessmentsoftware-dras.
The EPA used the following inputs to
its DRAS analysis of the Petitioner’s
waste, as summarized in Table 1 of this
preamble. An image of the DRAS input
screen is provided in Docket Entry
DRAS–4.0–inputs–DRAFT–043.
TABLE 1—DELISTING DRAS INPUT
DRAS input parameter
Value
Assumptions
Waste Management Unit Type .......
Waste Volume—annual generation
Waste Management Unit Active Life
Target risk—carcinogenic risk level
Landfill ...........................................
Up to 3,500 cubic yards/year ........
20 years .........................................
1 × 10¥5 ........................................
Target risk—health quotient ............
1.0 ..................................................
Detection limits ................................
0.5 ..................................................
Waste planned for disposal in a municipal solid waste landfill.
Conservative estimation value based on facility-specific information.
Selected based on the DRAS default value.
Based on risk ranges in the EPA’s RCRA Delisting Technical Support
Document (2008).
Based on risk ranges in the EPA’s RCRA Delisting Technical Support
Document (2008).
Non-detect samples will be run as half the value.
At a target cancer risk of 1 × 10¥5 and
a target hazard quotient of 1.0, the
DRAS program determined maximum
allowable concentrations for each
constituent in both the waste and the
leachate. The EPA used the maximum
estimated annual waste volume and the
maximum reported total and estimated
leachate concentrations as inputs to
estimate the constituent concentrations
in the ground water, soil, surface water
or air. Table 2, of this preamble,
documents the constituent-specific
maximum total and TCLP sample
results used as input to the DRAS
analysis, and the resulting modeling
results from DRAS using an annual
waste volume of 3,500 cubic yards per
year.
TABLE 2—SAMPLING DATA AND DRAS MODELING RESULTS
Maximum observed
concentration 1
Modeling results
Total concentrations
TCLP concentration
Constituent of concern
Total 1
TCLP
(mg/L) 4
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(mg/kg)
Limiting
concentration
(mg/kg) 2
Acetaldehyde ................
N/A
N/A
255,000,000
Barium ..........................
980
0.77
Benzaldehyde ...............
Benzene .......................
N/A
<3.8 U
Benzoic Acid .................
Benzyl alcohol ..............
Cobalt ...........................
Limiting pathway 3
Limiting
concentration
(mg/L) 2
8.65
10,400,000
Air Particulate Inhalation.
Fish Ingestion ..............
N/A
<0.2 U
26,300,000
276,000
Fish Ingestion ..............
Air Volatile Inhalation ..
6.08
0.166
N/A
N/A
3,660
N/A
N/A
1.26
8,460,000,000
813,000,000
62,300
..............
..............
Inhala-
5,000
125
0.583
Copper ..........................
7,520
0.29
463,000
Fish Ingestion
Fish Ingestion
Air Particulate
tion.
Fish Ingestion
..............
19
Formic Acid ..................
N/A
N/A
145,000
Air Volatile Inhalation ..
174
Methanol .......................
Nickel ............................
N/A
422
<0.75 U
0.35
3,030,000,000
402,000
2,500
29.2
Phenol ..........................
Toluene .........................
N/A
0.069
N/A
N/A
1,300,000,000
37,600,000
Air Volatile Inhalation ..
Air Particulate Inhalation.
Fish Ingestion ..............
Fish Ingestion ..............
Zinc ...............................
1,350
1.1
4,790,000
Fish Ingestion ..............
426
74.8
375
32.6
Limiting pathway 3
Groundwater Inhalation.
Maximum Contaminant
Level.
Groundwater Ingestion.
Maximum Contaminant
Level.
Groundwater Ingestion.
Groundwater Ingestion.
Groundwater Ingestion.
Maximum Contaminant
Level.
Groundwater Inhalation.
Groundwater Ingestion.
Groundwater Ingestion.
Groundwater Ingestion.
Maximum Contaminant
Level.
Groundwater Ingestion.
1. Maximum concentration documented in the Petitioner’s delisting petition, Tables A–1 and A–2, except for cobalt and zinc. The cobalt TCLP
data are as reported via email 4/17/2019 with a corresponding maximum TCLP concentration of 1.2 mg/L. See docket Entries EPA–R10–RCRA–
2018–0661–DRAFT–0036, –0037 and –0038. The zinc TCLP data are as reported via email 3/1/2019 with a corresponding maximum TCLP concentration of 1.1 mg/L.
2. The Limiting Concentration is the lowest risk-based concentration developed in DRAS for the potential receptor pathways and specified target risk levels. See text in Section IV.B for the EPA’s consideration of limiting concentrations exceeding 1,000,000 mg/kg for total concentrations
or 1,000,000 mg/L for TCLP concentrations.
3. The Limiting Pathway is the corresponding potential receptor pathway for the Limiting Concentration.
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4. For detected constituents, the maximum analytical result was used. For non-detect constituents (annotated with a ‘‘U’’), the practical quantitation limit (PQL) was used.
5. Note: The italicized cell (cobalt) indicate exceedance of COC Concentration Input over the Limiting Concentration in the DRAS modeling.
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The maximum reported
concentrations of the hazardous
constituents found in this waste are
presented in the Table 2 of this
preamble. The table also presents the
maximum allowable concentrations
using an expected maximum annual
waste volume of 3,500 cubic yards per
year.
Except for cobalt, all other COCs in
Table 2 of this preamble have maximum
observed concentrations below the
Limiting Concentration from the DRAS
modeling. Since the benzene TCLP was
non-detected at 0.2 mg/L, the DRAS
modeling assumed a value of one-half
(0.1 mg/L), which is less than the
Limiting Concentration from the DRAS
modeling for benzene.
As shown in Table 2 of this preamble,
the maximum observed concentration
for cobalt in a TCLP extract of the waste
was 1.26 mg/L, which exceed the
Limiting Concentration for cobalt of
0.583 mg/l from the DRAS modeling.
The Petitioner sampled the IWBS for
cobalt TCLP six times during January
2019 through April 2019. See Docket
Entries EPA–R10–RCRA–2018–0661–
DRAFT–0036, –0037 and –0038. The
TCLP analytical results for cobalt in the
IWBS ranged from 0.45 mg/L to 1.26
mg/L. At the cobalt result of 0.45 mg/
L TCLP, the IWBS meets the Limiting
Concentration from the DRAS modeling
using an expected maximum annual
waste volume of 3,500 cubic yards per
year. Because the sampling data for
cobalt indicates that the limiting value
for cobalt based on a maximum annual
waste volume of 3,500 cubic yards per
year may be exceeded, we performed
DRAS modelling to determine the TCLP
limiting concentration for cobalt for a
range of annual waste volumes ranging
from 1,000 to 3,500 cubic yards per
year.7 The results of these model runs
are presented in Table 3 of this
preamble.
7 The DRAS inputs used for these runs are
identical to those documented in Docket entry
DRAFT–043 DRAS–4.0–inputs.pdf, except that the
maximum annual waste volume was varied
between 1,000 and 3,500 cubic yards/year.
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TABLE 3—DRAS MODELING RESULTS
FOR COBALT
Annual waste
volume
(cubic yards per year)
Modeling
results—TCLP
limiting
concentration
(mg/L)
1,000
1,100
1,200
1,300
1,400
1,500
1,600
1,700
1,800
1,900
2,000
2,100
2,200
2,300
2,400
2,500
2,600
2,700
2,800
2,900
3,000
3,100
3,200
3,300
3,400
3,500
1.99
1.81
1.66
1.54
1.43
1.34
1.25
1.18
1.12
1.06
1.01
0.961
0.918
0.879
0.843
0.810
0.780
0.751
0.725
0.700
0.678
0.656
0.636
0.617
0.599
≤0.583
As shown in Table 3 of this preamble,
as the annual waste volume increases,
the TCLP Limiting Concentration for
cobalt decreases. More specifically, the
product of waste volume and the TCLP
limiting concentration remains constant
at 2,000 yds3-mg/L (to two significant
figures). Based on these calculations, the
EPA is proposing that the exclusion
criteria for cobalt be based on a cobalt
budget concept. Rather than specify an
exclusion limit based on a fixed TCLP
limiting concentration and a
corresponding maximum annual waste
volume, the compliance limit will be
established based on a running total
calculated for each batch. This running
total can be expressed mathematically
as:
Formula 1
Where:
Vi = the volume of each batch in cubic yards
(yd3);
Ci = the concentration of cobalt in a TCLP
extract of each batch;
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n = number of batches generated per calendar
year
This running total begins at zero for
each annual period, starting with the
effective date of this exclusion, if
finalized. As each batch is generated,
the running total is updated with the
batch contribution according to the
formula above. The batch volume is
expressed in cubic yards but may be
measured in practice by the weight of
each batch divided by the density of
0.67 tons/cubic yard (See Section III.C
of this preamble).8 As long as this
running total remains below 2,000,
IWBS that otherwise meets the
numerical exclusion criteria according
to the conditions of this approval and
does not exhibit a hazardous
characteristic may be disposed of in a
Subtitle D disposal unit. Once the cobalt
budget limit of 2,000 is exceeded, all
subsequent batches of IWBS must be
managed as hazardous for the balance of
the annual period. The EPA notes that
wastes with cobalt results greater than
1.99 mg/l in an extract of the waste
cannot be excluded under this delisting,
as documented in Table 4 of this
preamble. EPA’s rationale for this upper
bound on concentration is that it
corresponds to the maximum annual
quantity of waste modeled by DRAS for
all other constituents of concern.
One of the key elements of this cobalt
budget mechanism is that it requires
analytical data characterizing each batch
of IWBS.9 In discussing this issue with
the Petitioner, EPA learned that using
an outside commercial analytical
laboratory for this batch-by-batch
analysis would complicate the logistics
of managing filled containers of IWBS
pending receipt and evaluation of
outside laboratory data. To address this
logistics problem the Petitioner
proposed developing an in-house
method that would provide faster
turnaround and thus faster disposal
8 The EPA is applying this density based on
available information provided by the Petitioner as
part of the petition submittal process. As explained
below, the EPA will require the Petitioner to gather
additional density data during the first annual
period under this exclusion, if finalized. If these
additional density data support use of a revised
density for the cobalt budget calculation, the EPA
will provide the Petitioner approval to use the
revised density according to Condition 2 of the
proposed exclusion.
9 Other waste constituents considered in this
exclusion do not approach the applicable limiting
concentration calculated by DRAS. Therefore,
constituents other than cobalt considered in this
proposed exclusion do not warrant batch-by-batch
sampling.
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F. What are the EPA’s proposed findings
regarding the petitioned waste?
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decisions for each batch of IWBS. This
method is a colorimetric procedure
which is applied to an extract of IWBS
generated using SW–846 Method 1311.
The Petitioner shared an early draft of
the proposed method (Docket Entry
Method–TCLP–Cobalt–draft–DRAFT–
0047), on which the EPA reviewed and
provided several comments. EPA’s
comments and the Petitioners responses
are documented in Docket Entry EPA
and Ecology comments Rev 0
08172021–DRAFT–0048, with the final
method documented in Docket Entry
Method–TCLP–Cobalt–Rev1.0–DRAFT–
0049. After resolving these comments,
the Petitioner obtained paired data on
an extract of IWBS prepared in-house
following SW–846 Method 1311,
followed by analysis of the extract at an
off-site commercial laboratory using
SW–846 Method 6010C and an in-house
analysis of the same extract using the inhouse colorimetric method. These data
are presented in Docket Entry RE_
Emerald-Kalama Delisting Check-In and
Planning—meeting follow-up–DRAFT–
0051. To evaluate these data, the EPA
performed a two-point percent relative
difference analysis on each paired data
point. The percent relative difference is
calculated using the formula:
Formula 2
%RPD
IX1 -xzl
=- - - * 100%
(x1 + x )/2
2
Where:
%RBD = percent relative difference;
X1 and X2 = paired data
The paired data are presented below,
along with the calculated percent
relative difference:
TABLE 4—PAIRED DATA COMPARISON, TCLP EXTRACT ANALYSIS FOR COBALT
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1
2
3
4
5
6
7
8
9
10
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%RPD
0.48
0.55
0.75
0.56
0.27
0.34
0.56
0.54
0.48
0.38
The calculated relative percent
difference indicates that the results from
in-house and outside laboratory are in
close agreement, with the calculated
relative percent difference ranging from
1.3 percent to 8.0 percent. The EPA
notes that a typical analytical laboratory
performance for paired data from a
single sample results in a relative
percent difference of ±30%. Therefore,
the relative percent difference between
the Petitioner’s in-house method and a
standard outside laboratory method
compare very favorably to the variability
seen for multiple laboratory analysis of
a single sample. On this basis, the EPA
has determined that the Petitioner’s inhouse method for analyzing an extract
of the IWBS obtained through an SW–
846 Method 1311 TCLP procedure can
be used for obtaining batch-by-batch
cobalt data for use with the cobalt
budget mechanism described above.
Because this cobalt budget tool is a
novel application of DRAS modelling
output to an exclusion, the EPA has
determined that it is appropriate to
review implementation of this model
based on real-world experience.
Therefore, the EPA is proposing a
reporting requirement at the end of each
anniversary of operations under this
proposed exclusion. Under this
requirement, the Petitioner must report
all verification data obtained during
each year following the effective date of
this exclusion, including measurement
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0.49
0.58
0.74
0.54
0.29
0.32
0.57
0.53
0.52
0.37
of IWBS density and additional paired
data for cobalt in an extract of the waste
according to Condition 1 of this
proposed exclusion. These additional
data will provide the EPA with an
opportunity to verify that the
mechanism is operating as intended,
and if warranted, to initiate any changes
to the delisting rule to ensure the
criteria of 40 CFR 260.22 will continue
to be satisfied. EPA is providing a
mechanism whereby the Petitioner may
request relief from this requirement
following the first year of reporting. If
EPA agrees that further reporting is not
warranted, EPA will provide the
Petitioner a written response providing
future relief from this requirement. EPA
will, of course, retain its statutory
authority under RCRA § 3008(a) to
inspect records required by this
exclusion and to enforce its terms and
conditions.
Because it is likely that the Petitioner
will monitor IWBS production on a
weight basis (it is much easier and more
accurate to weigh each IWBS roll-off
box than to measure the volume of
waste in the roll-off box), the EPA is
requiring the Petitioner to document the
density of each batch of IWBS during
the first year of operations to verify that
the reported density of 0.67 tons/cubic
yard supporting the petition is
representative of the waste over an
entire annual period. Should additional
data provide a basis to revise the 0.67
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2.1
5.3
1.3
3.6
7.1
6.1
1.8
1.9
8.0
2.7
tons/cubic yard density, the EPA may
provide the Petitioner with written
approval to use an updated value
pursuant to Condition 6.
The Petitioner sampled the IWBS for
benzene TCLP twice; once in 2000 with
a result of non-detected at 0.15 mg/L
and once in 2014 with a result of nondetected at 0.2 mg/L. The Limiting
Concentration from the DRAS modeling
for TCLP benzene is 0.166 mg/L. The
PQL for the 2014 TCLP benzene sample
was greater than the Limiting
Concentration of 0.166 mg/L TCLP,
although the model used one-half the
detection limit. Based on the benzene
total concentrations of the IWBS, we
conclude that the Limiting
Concentration from DRAS for TCLP
benzene will not be exceeded.
Verification sampling is required to
confirm this, with appropriate data
quality to allow direct comparison
between the laboratory results and the
delisting exclusion limit of 0.166 mg/l
in an extract of the waste.
We therefore conclude that the
Petitioner’s wastewater treatment sludge
(IWBS) is not a substantial or potential
hazard to human health and the
environment when disposed of in a
Subtitle D landfill according to the
conditions of this proposed exclusion.
Further, the data presented by the
Petitioner in their petition supports the
EPA’s conclusion that the petitioned
waste does not exhibit any hazardous
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characteristic, and that there are no
other factors that would warrant
retaining the waste as hazardous. On
this basis, we propose to grant the
Petitioner’s petition to delist this waste.
If this exclusion is finalized, and subject
to the conditions of the final delisting,
the Petitioner must dispose of the
allowed amount of waste (based on the
verification approach documented in
the rule) in a Subtitle D landfill
permitted or licensed by a state and will
remain obligated to verify that the waste
continues to meet the allowable
concentrations set forth here. The
Petitioner must also continue to
demonstrate that the waste does not
exhibit any hazardous characteristics
pursuant to 40 CFR part 261 subpart C.
IV. Conditions for Exclusion
A. How will the Petitioner manage the
waste if it is delisted?
If the petitioned waste is delisted, the
Petitioner must dispose of it in a
Subtitle D landfill which is permitted,
licensed, or registered by a state to
manage industrial waste.
B. What are the maximum allowable
concentrations of hazardous
constituents in the waste?
Concentrations measured in the waste
of the following constituents must not
exceed the concentrations in Table 5
below.
TABLE 5—VERIFICATION CONSTITUENTS AND COMPLIANCE CONCENTRATIONS
Total
concentration
DRAS model
(mg/kg)
Constituent
Acetaldehyde ..............................................................................
Barium ........................................................................................
Cobalt .........................................................................................
Copper ........................................................................................
Nickel ..........................................................................................
Zinc .............................................................................................
Benzaldehyde .............................................................................
Benzene ......................................................................................
Benzoic Acid ...............................................................................
Formic Acid .................................................................................
Benzyl alcohol ............................................................................
Methanol .....................................................................................
Phenol .........................................................................................
Toluene .......................................................................................
The EPA notes that in multiple
instances the maximum allowable total
constituent concentrations provided by
the DRAS model exceed 100% of the
waste—these DRAS results are an
artifact of the risk calculations and do
not have physical meaning (since it is
not possible to have a concentration
greater than 100%). In instances where
DRAS predicts a maximum constituent
greater than 100 percent of the waste
(that is, greater than 1,000,000 mg/kg or
mg/L, respectively, for total and TCLP
concentrations), the EPA is not
requiring the Petitioner to perform
sampling and analysis for that
constituent and sampling type (total or
TCLP). In these instances, the
corresponding entry in Table 5 of this
preamble is ‘‘N/A.’’
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C. How frequently must the Petitioner
test the waste?
To fully verify that the Petitioner’s
waste complies with the verification
limits of this proposed exclusion are
satisfied on an on-going basis, and
because the Petitioner operates multiple
generation processes that could alter the
concentration of waste constituents
from which IWBS is derived, the
Petitioner must analyze a representative
sample of the wastewater treatment
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N/A
N/A
62,300
463,000
402,000
N/A
N/A
276,000
N/A
145,000
N/A
N/A
N/A
N/A
TCLP concentration DRAS model
(mg/l)
8.65.
74.8.
cobalt budget mechanism.
19.0.
29.2.
426.
6.08.
0.166.
5,000.
174.
125.
2,500.
375.
32.6.
sludges on a periodic basis to
demonstrate that the constituents of
concern in the petitioned waste do not
exceed the concentrations of concern in
Section IV.B of this preamble. The EPA
is proposing that the Petitioner sample
its delisted waste (for the constituents in
Table 5 of this preamble, except cobalt)
every ten roll-off boxes, estimated to be
generated at a rate of three/week.10 This
would result in approximately 16
samples per year. The Petitioner must
analyze a representative sample of each
batch (roll-off box) of the wastewater
treatment sludges for cobalt TCLP
concentration. The Petitioner will use
the batch cobalt TCLP concentration,
volume of IWBS in the batch, and
Formula 1 to determine the running
cobalt budget as discussed in Section
III.F of this preamble.
The EPA believes that this sampling
rate will provide an appropriate level of
certainty that all delisted waste does
indeed meet the delisting criteria
presented in Table 5 of this preamble.
10 The Petitioner noted logistics issues if a ‘‘10th
batch’’ must be sampled on a weekend or Federal
holiday. See Docket Entry RE_Emerald-Kalama
Delisting Follow-up–DRAFT–0073. To address this,
EPA has added a provision that in such
circumstances, the Petitioner may substitute
sampling for the 9th or 11th batch for purposes of
verification sampling.
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As the Petitioner gathers a more
extensive data set of sampling data, the
EPA recognizes that changes to these
sampling rates may be warranted.
Therefore, the EPA is including a
proposed provision that the Petitioner
may request the EPA’s approval for
changes to the verification sampling and
analysis frequency. The Petitioner must
use methods with appropriate analytical
sensitivity quality control procedures,
as documented in a written quality
assurance project plan. SW–846 Method
1311 must be used for generation of the
leachate extract used in the testing of
the subject waste. SW–846 Method 1311
is incorporated by reference in 40 CFR
260.11.
The Petitioner has provided
information to EPA that the Washington
State Department of Ecology does not
currently accredit any laboratory in the
state of Washington for analysis of
acetaldehyde, benzaldehyde, or formic
acid in samples of solid material. See
Docket Entry LAI Verification Sampling
Plan 2020 04 08 final–DRAFT–0074,
Section 3.0 and COCs–Lab–Search–
DRAFT–0075. Therefore, the EPA will
accept laboratory analyses result for
acetaldehyde, benzaldehyde and formic
acid from a laboratory that otherwise
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holds accreditation for all other
analytes.
A total analysis of the waste
(accounting for any filterable liquids
and the dilution factor inherent in the
TCLP method) may be used to estimate
the TCLP concentration as provided for
in section 1.2 of Method 1311, except
for weekly cobalt sampling.11
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D. What data must the Petitioner
submit?
The Petitioner must submit the data
obtained through verification testing to
U.S. EPA Region 10, Office of Air and
Waste, 1200 6th Avenue, Suite 155, M/
S 15–H04, Seattle, Washington 98101
upon each anniversary of the effective
date of this exclusion.
The Petitioner must compile,
summarize, and maintain on-site for a
minimum of five years, records of
analytical data required by this rule, and
operating conditions relevant to those
data analytical data. The Petitioner must
make those records available for
inspection. All data must be
accompanied by a signed copy of the
certification statement in 40 CFR
260.22(i)(12).
E. What happens if the Petitioner fails
to meet the conditions of the exclusion?
If the Petitioner violates the terms and
conditions established in the exclusion,
the Agency may start procedures to
withdraw the exclusion.
If the verification testing of the waste
does not demonstrate compliance with
the delisting concentrations described
in section IV.B above, or other data
(including but not limited to leachate
data or groundwater monitoring data
from the final land disposal facility)
relevant to the delisted waste indicates
that any constituent is at a
concentration in waste above specified
delisting verification concentrations in
Table 5 of this preamble, the Petitioner
must notify the Agency within 10 days
of first possessing or being made aware
of the data. The exclusion will be
suspended, and the waste managed as
hazardous until the Petitioner has
received written approval from the EPA
to continue the exclusion. The
Petitioner may provide sampling results
which support the continuation of the
delisting exclusion.
The EPA has the authority under
RCRA and the Administrative Procedure
Act, 5 U.S.C. 551 (1978) et seq. to
reopen a delisting decision if we receive
new information indicating that the
conditions of this exclusion have been
violated or are otherwise not being met.
11 For additional details on this approach, see
https://archive.epa.gov/epawaste/hazard/web/html/
faq_tclp.html.
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F. What must the Petitioner do if the
process changes?
If the Petitioner significantly changes
the manufacturing or treatment process
or the chemicals used in the
manufacturing or treatment process, the
Petitioner may not handle the
wastewater treatment sludge generated
from the new process under this
exclusion until it has demonstrated to
the EPA that the waste meets the
concentrations set forth in section IV.B
and that no new hazardous constituents
listed in Appendix VIII of 40 CFR part
261 have been introduced. The
Petitioner must manage wastes
generated after the process change as
hazardous waste until the Petitioner has
received written notice from the EPA
that the demonstration has been
accepted.
V. When would the EPA finalize the
proposed delisting exclusion?
40 CFR 260.20(c) requires the EPA to
provide notice and an opportunity for
comment before granting or denying a
final exclusion. Thus, the EPA will not
make a final decision or grant an
exclusion until it has addressed all
timely public comments on today’s
proposal, including any at public
hearings.
Since this proposed rulemaking
would reduce the existing requirements
for persons generating hazardous
wastes, the regulated community does
not need a six-month period to come
into compliance in accordance with
section 3010 of RCRA, 42 U.S.C. 6930,
as amended by HSWA.
VI. How would this action affect states?
Because the EPA is proposing to issue
this exclusion under the federal RCRA
delisting regulations, only states subject
to federal RCRA delisting provisions
will be affected. This exclusion may not
be effective in states which have
received authorization from the EPA to
make their own delisting decisions.
The EPA allows states to impose their
own non-RCRA regulatory requirements
that are more stringent than the 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.
We urge petitioners to contact the state
regulatory authority to establish the
status of their wastes under the state
law.
The EPA has also authorized some
states to administer a delisting program
in place of the Federal program, that is,
to make state delisting decisions.
Therefore, this exclusion does not apply
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3061
in those authorized states. If the
Petitioner manages the waste in any
state with delisting authorization, the
Petitioner must obtain delisting
authorization or other determination
from the receiving state before it can
manage the waste as nonhazardous in
that state.
While Washington State has received
final authorization to implement most of
its dangerous waste program regulations
in lieu of the Federal program,
including the listing and identification
of listed waste codes associated with the
petitioned wastes, it has not been
authorized to implement its delisting
regulations program in lieu of the
Federal program. The EPA notes that
Washington State has provisions in the
Washington Administrative Code
(WAC) 173–303–910(3) similar to the
Federal provisions upon which this
delisting is based. These provisions are
in effect as a matter of state law. Thus,
the Petitioner must seek approval from
Washington State at the state level in
addition to this proposed delisting.
VII. Statutory and Executive Order
Reviews
Additional information about these
statutes and Executive Orders can be
found at https://www2.epa.gov/lawsregulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This proposed action is exempt from
review by the Office of Management and
Budget because it is a rule of particular
applicability, not general applicability.
The proposed action approves a
delisting petition under RCRA for the
petitioned waste at a particular facility.
B. Executive Order 13771: Reducing
Regulations and Controlling Regulatory
Costs
This proposed action is not an
Executive Order 13771 regulatory action
because actions such as approval of
delisting petitions under RCRA are
exempted under Executive Order 12866.
C. Paperwork Reduction Act
This proposed action does not impose
an information collection burden under
the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.) because it only applies to a
particular facility.
D. Regulatory Flexibility Act
Because this rule is of particular
applicability relating to a particular
facility, it is not subject to the regulatory
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flexibility provision of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.).
E. Unfunded Mandates Reform Act
This proposed action does not contain
any unfunded mandate as described in
the Unfunded Mandates Reform Act (2
U.S.C. 1531–1538) and does not
significantly or uniquely affect small
governments. The proposed action
imposes no new enforceable duty on
any state, local, or tribal governments or
the private sector.
F. Executive Order 13132: Federalism
This proposed action does not have
federalism implications. It will not have
substantial direct effects on the states,
on the relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government.
G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This proposed action does not have
tribal implications as specified in
Executive Order 13175. This proposed
action applies only to a particular
facility on non-tribal land. Thus,
Executive Order 13175 does not apply
to this action.
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H. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
This proposed action is not subject to
Executive Order 13045 because it is not
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economically significant as defined in
Executive Order 12866, and because the
EPA does not believe the environmental
health or safety risks addressed by this
action present a disproportionate risk to
children.
I. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution or Use
This proposed action is not subject to
Executive Order 13211, because it is not
a significant regulatory action under
Executive Order 12866.
J. National Technology Transfer and
Advancement Act
This proposed action does not involve
technical standards as described by the
National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note).
K. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
The EPA believes that this proposed
action does not have disproportionately
high and adverse human health or
environmental effects on minority
populations, low-income populations,
and/or indigenous peoples. The EPA
has determined that this proposed
action will not have disproportionately
high and adverse human health or
environmental effects on minority or
low-income populations because it does
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not affect the level of protection
provided to human health or the
environment.
L. Congressional Review Act
This proposed action is exempt from
the Congressional Review Act (5 U.S.C.
801 et seq.) because it is a rule of
particular applicability.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous
waste, Recycling, and Reporting and
recordkeeping requirements.
Dated: January 6, 2022.
Davis Zhen,
Acting Director, Land, Chemicals and
Redevelopment Division.
For the reasons set out in the
preamble, the EPA proposes to amend
40 CFR part 261 as follows:
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261
continues to read as follows:
■
Authority: 42 U.S.C. 6905, 6912(a), 6921,
6922, 6924(y) and 6938.
2. In Table 1 of Appendix IX to Part
261 add an entry ‘‘Emerald Kalama
Chemical, LLC’’ in alphabetical order to
read as follows:
■
Appendix IX to Part 261—Wastes
Excluded Under §§ 260.20 and 260.22
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3063
Table I-Wastes Excluded From Non-Specific Sources
Facility
*
*
Address
*
*
*
Waste description
*
*
Emerald Kalama
Kalama,
Wastewater treatment sludges, U019 (benzene) and U220 (toluene), generated at Emerald Kalama
Chemical, LLC
Washington
Chemical, LLC in Kalama, Washington at a maximum annual rate of 3,500 cubic yards per year. The
sludge must be disposed of in a Subtitle D landfill which is licensed, permitted, or otherwise
authorized by a state to accept the delisted wastewater treatment sludge. The exclusion becomes
effective as of January 20, 2022.
1. Delisting Levels:
The constituent concentrations in a representative sample of the waste must not exceed the following
levels. Total concentrations (mg/kg): Cobalt--62,300; Copper-463,000; Nickel-402,000; Benzene276,000; Formic Acid-145,000. TCLP Concentrations (mg/I in the waste extract): Acetaldehyde-8.65;
Barium-74.8; Copper-19.0; Nickel-29.2; Zinc-426; Benzaldehyde-6.08; Benzene--0.166; Benzoic
Acid-5,000; Formic Acid-174; Benzyl Alcohol-125; Methanol-2,500; Phenol-375; Toluene-32.6.
For the cobalt concentration in an extract of the waste, the exclusion is based on a demonstration of
being within a cobalt budget defined as 2000 yds 3-mg/L. The Petitioner must calculate a running total
starting with the effective date of this exclusion, and for each annual period, using the following:
n
LViCi
1
Where
Vi= the volume of each batch in cubic yards (yd3)
Ci = the concentration of cobalt in a TCLP extract of each batch as per
Condition of this exclusion (mg/L)
n = number of batches generated per year
The Petitioner may conduct analysis for cobalt in an extract of the IWBS biosolids using the in-house
method documented in (reference) as placed in the rulemaking docket. The Petitioner may monitor the
quantity of waste in each batch on a weight basis, converting to volume using a documented density of
0.67 tons/cubic yard. Provided that the cumulative cobalt budget remains less than the limit of 2000
yds 3-mg/L each batch will be considered in compliance with the exclusion limit for cobalt in an extract
of the waste. However, any batch with a cobalt concentration greater than 1.99 mg/I in a TCLP extract
of the waste cannot be managed under this exclusion and must remain subject to RCRA Subtitle C
document the density ofIWBS for each batch ofIWBS using ASTM Method ASTM E1109 - 19 or
other equivalent method for purposes of verifying the 0.67 tons/cubic yard density. In addition, the
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regulation. For the first year following the effective date of this exclusion, the Petitioner shall also
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Petitioner shall, on an on-going monthly basis, obtain analysis of one spit aliquot of the TCLP extract
of IWBS biosolids for cobalt from an independent laboratory accredited by the Washington State
Department of Ecology subject to the provision of Condition 2 below.
2. Reporting. Within 60 days of each anniversary of the effective date of this exclusion, or such other
time as the EPA may approve in writing, the Petitioner shall provide a written report to the EPA
documenting all data gathered regarding extraction and analysis of the extract for cobalt pursuant to
the requirements of this exclusion, including the results of IWBS density measurement (first year
report only) and the independent laboratory data for cobalt required by Condition 1. This report must
be accompanied by the signed certification language appearing at 40 CFR 270.1( dXl ). After review of
the density data presented in this report, the EPA may provide the Petitioner written approval to use
some other numerical density than 0.67 tons/cubic yard for purposes of subsequent implementation of
cobalt budget calculations pursuant to Condition 1. Following submission of the first annual report, the
Petitioner may request relief from the spilt aliquot analysis requirement in Condition 1. Upon receipt of
written approval of the request from EPA, the Petitioner will be relieved of the spilt aliquot analysis
requirement in Condition 1.
3. Verification Testing: To verify that the waste does not exceed the delisting concentrations specified
in Condition 1 (except for cobalt), the Petitioner must collect and analyze one representative waste
sample of every tenth roll-off box of wastewater treatment sludge. If this sampling is expected to occur
on a weekend or a federal holiday, the Petitioner may substitute sampling of the 9 th or 11 th batch, with
sampling of subsequent batches resuming on the original every 10th roll-off box schedule. EPA notes
that the Washington State Department of Ecology does not currently accredit any laboratory in the
state of Washington for analysis of acetaldehyde, benzaldehyde, or formic acid in samples of solid
material. the EPA will accept laboratory analyses result for acetaldehyde, benzaldehyde and formic
acid from a laboratory that otherwise holds accreditation for all other analytes. For cobalt, sampling
must occur once per batch (as defined by a single roll-off box). All sampling and analysis must be
conducted using methods with appropriate detection concentrations and elements of quality control.
Sampling data must be provided to the EPA no later 60 days following each anniversary of the
effective date of this delisting, or such later date as the EPA may agree to in writing. No earlier than
the first anniversary of the effective date of this delisting, the Petitioner may request that the EPA
approve changes to the sampling frequency under this condition. Such a request must include data and
analysis that demonstrated that the revised sampling frequency will ensure that all wastes subject to
this exclusion will consistently satisfy the delisting exclusion criteria under Condition 1. The Petitioner
assurance project plan which is approved in advance by the EPA that ensures analytical data are
suitable for their intended use. The Petitioner's annual submission must also include a ce1tification that
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must conduct all verification sampling according to a written sampling plan and associated quality
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all wastes satisfying the delisting concentrations in Condition 1 have been disposed of in a Subtitle D
landfill which is licensed, permitted, or otherwise authorized by a state to accept the delisted
wastewater treatment sludge.
4. Changes in Operating Conditions: The Petitioner must notify the EPA in writing if it significantly
changes the manufacturing process, the chemicals used in the manufacturing process, the treatment
process, or the chemicals used in the treatment process. The Petitioner must handle wastes generated
after the process change as hazardous until it has demonstrated that the wastes continue to meet the
delisting concentrations in Condition 1, demonstrated that no new hazardous constituents listed in 40
CFR Part 261 Appendix VIII have been introduced into the manufacturing process or waste treatment
process, and it has received written approval from the EPA that it may continue to manage the waste as
non-hazardous.
5. Data Submittals: The Petitioner must submit the data obtained through verification testing or as
required by other conditions of this rule to the Director, Land, Chemical, & Redevelopment Division,
U.S. EPA Region 10, 1200 6th Avenue Suite 155, MIS 15-H04, Seattle, Washington, 98101 or his or
her equivalent. The annual verification data and certification of proper disposal must be submitted
within 60 days after each anniversary of the eflective date of this delisting exclusion, or such later date
as the EPA may agree to in writing. The Petitioner must compile, summarize, and maintain on-site for a
minimum of five years, records of analytical data required by this rule, and operating conditions relevant
to those data. The Petitioner must make these records available for inspection. All data must be
accompanied by a signed copy of the certification statement in 40 CFR 260.22(i)(l2). If the Petitioner
fails to submit the required data within the specified time or maintain the required records on-site for the
specified time, the EPA may, at its discretion, consider such failure a sufficient basis to reopen the
exclusion as described in paragraph 5.
6. Reopener Language: (A) If, any time after disposal of the delisted waste, the Petitioner possesses or is
otherwise made aware of any data relevant to the delisted waste indicating that any constituent is at a
higher than the specified delisting concentration, then the Petitioner must report such data, in writing, to
the Director, Land, Chemical, & Redevelopment Division, EPA Region l 0 at the address above, or his
01
her equivalent, within 10 days of first possessing or being made aware of those data.
(B) Based on the information described in Condition 4 or 6(A) and any other information received from
any source, the EPA will make a preliminary determination as to whether the reported information
requires Agency action to protect human health or the environment. Further action may include
suspending, or revoking the exclusion, or other appropriate response necessary to protect human health
(C) If the EPA determines that the reported information does require Agency action, the EPA will
notify the Petitioner in writing of the actions it believes are necessary to protect human health and the
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and the environment.
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environment. The notice shall include a statement of the proposed action and a statement providing the
Petitioner with an opportunity to present information as to why the proposed Agency action is not
necessary or to suggest an alternative action. The Petitioner shall have 30 days from the date of the
EPA's notice to present the information.
(D) If after 30 days the Petitioner presents no further information or after a review of any submitted
information, the EPA will issue a final written determination describing the Agency actions that are
necessary to protect human health or the environment. Any required action described in the EP A's
determination shall become effective immediately unless the EPA provides otherwise.
* *
*
*
*
*
*
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BILLING CODE 6560–50–C
]]>Agencies
[Federal Register Volume 87, Number 13 (Thursday, January 20, 2022)]
[Proposed Rules]
[Pages 3053-3066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-00728]
[[Page 3053]]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R10-RCRA-2018-0661; FRL-9414-01-R10]
Hazardous Waste Management System; Proposed Exclusion for
Identifying and Listing Hazardous Waste
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule and request for comment.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) (also, ``the
Agency'' or ``we'' in this preamble) is proposing to grant a petition
submitted by Emerald Kalama Chemical, LLC, in Kalama, Washington to
exclude (or ``delist'') up to 3,500 cubic yards of U019 (benzene) and
U220 (toluene) industrial wastewater biological solids (IWBS) per year
from the list of federal hazardous wastes under the Resource
Conservation and Recovery Act.
DATES: Comments must be received on or before February 22, 2022.
Requests for an informal hearing must reach the EPA by February 4,
2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
RCRA-2018-0661 by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
Mail: To Dr. David Bartus, Land, Chemicals and
Redevelopment Division, EPA, Region 10, 1200 6th Avenue, Suite 155, M/S
15-H04, Seattle, Washington 98101.
Hand Delivery: To Dr. David Bartus, Land, Chemicals and
Redevelopment Division, EPA, Region 10, 1200 6th Avenue, Suite 155, M/S
15-H04, Seattle, Washington 98101. Such deliveries are only accepted
during normal hours of operation. Please contact Dr. David Bartus at
(206) 553-2804.
Instructions: Direct your comments to Docket ID No. EPA-R10-RCRA-
2018-0661. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at 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 www.regulations.gov
or email. The www.regulations.gov website is an ``anonymous access''
system, which means the EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an email comment directly to the EPA without going through
www.regulations.gov your email 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, the EPA recommends that you include your name and other
contact information in the body of your comment and with any physical
media you submit. If the EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, the 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.
Any person may request an informal hearing on this proposed
decision by filing a request with Timothy Hamlin, Director, Land,
Chemicals and Redevelopment Division, EPA, Region 10, 1200 6th Ave.,
Suite 155, M/S 15-H04, Seattle, Washington 98101. The request must
contain the information prescribed in 40 Code of Federal Regulations
(CFR) 260.20(d).
Docket: All documents in the docket are listed in the
www.regulations.gov index.\1\ Although listed in the index, some
information may not be 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 form. Publicly available docket materials are available
either electronically through www.regulations.gov or in hard copy at
the RCRA Records Center, 16th floor, U.S. EPA, Region 10, 1200 6th
Avenue, Suite 155, M/S 16-C09, Seattle, Washington 98101. This facility
is open from 8:30 a.m. to 4:00 p.m., Monday through Friday, excluding
legal holidays. We recommend you telephone David Bartus at (206) 553-
2804 before visiting the Region 10 office. The public may copy material
from the regulatory docket at 15 cents per page.
---------------------------------------------------------------------------
\1\ The input files for the Delisting Risk Assessment Software
(DRAS 4.0) used in support of this proposed rulemaking are in a file
format not supported by EPA's electronic docket management system.
EPA has provided ``screen shot'' images of the input data in
Portable Document Format (.pdf) files. Commentors interested in the
actual DRAS 4.0 input files may request them through the EPA
contacts listed above.
FOR FURTHER INFORMATION CONTACT: Dr. David Bartus, EPA, Region 10, 1200
6th Avenue, Suite 155, M/S 15-H04, Seattle, Washington 98101; telephone
number: (206) 553-2804; fax number (206) 553-8509; email address:
[email protected].
As discussed in Section V of this preamble, the Washington State
Department of Ecology is evaluating the Petitioner's petition under
state authority. Information on Ecology's action may be found at
https://ecology.wa.gov/Regulations-Permits/Permits-certifications/Industrial-facilities-permits/Emerald-Kalama-Chemical.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
II. Background
A. What is the listed waste associated with this Petition?
B. What is a delisting petition?
C. What factors must the EPA consider in deciding whether to
grant a delisting petition?
III. EPA's Evaluation of the Waste Information and Data
A. What waste did the Petitioner petition the EPA to delist?
B. How does the Petitioner generate the waste?
C. How does the Petitioner sample and analyze the waste?
D. What were the results of the EPA's analysis of the
Petitioner's waste?
E. How did the EPA evaluate the risk of delisting this waste?
F. What are the EPA's proposed findings regarding the petitioned
waste?
IV. Conditions for Exclusion
A. How will the Petitioner manage the waste if it is delisted?
B. What are the maximum allowable concentrations of hazardous
constituents in the waste?
C. How frequently must the Petitioner test the waste?
D. What data must the Petitioner submit?
E. What happens if the Petitioner fails to meet the conditions
of the exclusion?
F. What must the Petitioner do if the process changes?
V. When would the EPA finalize the proposed delisting exclusion?
VI. How would this action affect states?
VII. Statutory and Executive Order Reviews
I. Overview Information
The EPA is proposing to grant the petition submitted by Emerald
Kalama Chemical, LLC located in Kalama, Washington to exclude (or
``delist'') an annual volume of up to 3,500 cubic yards of U019
(benzene) and U220 (toluene) industrial wastewater biological solids
(IWBS) hazardous waste per year from the list of hazardous waste set
forth in 40 CFR 261.33. The Petitioner claims that the petitioned waste
does not meet the criteria for
[[Page 3054]]
which the EPA listed it, and that there are no additional constituents
or factors which could cause the waste to be hazardous.
Based on our review described in Section III of this preamble, we
propose to make a determination that the petitioned waste is non-
hazardous with respect to the listed waste codes that originally
applied. As part of our supporting analysis, we reviewed the
description of the process which generates the waste and the analytical
data submitted by the Petitioner. We believe that the petitioned waste
does not meet the criteria for which the waste was originally listed,
that they do not exhibit any hazardous waste characteristic, and that
there are no other factors which might cause the waste to be hazardous.
Accordingly, the EPA is proposing to find the petitioned waste may be
safely managed as non-listed hazardous waste. The EPA notes that while
the burden of demonstrating that a delisted waste does not also exhibit
a hazardous characteristic remains with the facility, data provided by
the Petitioner demonstrate that the candidate waste does not exhibit a
hazardous characteristic.
II. Background
A. What is the listed waste associated with this petition?
The EPA published an amended list of discarded commercial chemical
products, off-specification species, container residues and spill
residues thereof on November 25, 1980 (45 FR 78532), as part of its
final and interim final regulations implementing section 3001 of
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6921. The EPA
has amended this list several times and published it in 40 CFR 261.33.
We list these wastes as hazardous because: (1) They typically and
frequently exhibit one or more of the characteristics of hazardous
wastes identified in 40 CFR part 261 subpart C (that is, ignitability,
corrosivity, reactivity, and toxicity) or (2) they meet the criteria
for listing contained in 261.11(a)(2) or (3).
B. What is a delisting petition?
Individual waste streams may vary depending on raw materials,
industrial processes, and other factors. Thus, while a waste from a
source listed in the regulations as ``hazardous'' is by definition
hazardous, a specific waste from an individual generating facility and
from a source meeting the listing description may produce wastes that
vary significantly from the wastes the EPA considered in establishing
the waste listing.
A procedure to exclude or delist a waste is provided in 40 CFR
260.20 and 260.22 which allows a person or a facility to submit a
petition to the EPA or to an authorized state demonstrating that a
specific waste from a particular generating facility should not be
regulated as hazardous.\2\
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\2\ Washington State's promulgated regulations at WAC 173-303-
910(3) correspond to the Federal regulation. However, Washington
State has not received final authorization to implement these
regulations in lieu of the Federal program. As such, they are
effective concurrent with 40 CFR 260.20 and 260.22 on a state-only
basis.
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In a delisting petition, the Petitioner must show that a waste does
not meet any of the criteria for listed wastes in 40 CFR 261.11 and
that the waste does not exhibit any of the hazardous waste
characteristics of ignitability, reactivity, corrosivity, or toxicity.
The Petitioner must present sufficient information for the EPA to
decide whether any factors in addition to those for which the waste was
listed warrant retaining it as a hazardous waste. (See 40 CFR 260.22
and 42 U.S.C. 6921(f).) The EPA's basis for originally listing the
wastes associated with this petition may be found at 45 FR 78532.
If a delisting petition is granted, the specific waste identified
in the delisting will be excluded from the associated lists of
hazardous waste in 40 CFR part 261 subpart D so long as conditions in
the delisting are met. A waste which is so excluded, however, may still
exhibit a characteristic and thus be a hazardous waste by operation of
40 CFR part 261 subpart C. The EPA notes that while the burden of
demonstrating that a delisted waste does not also exhibit a hazardous
characteristic remains with the facility, the data provided by the
Petitioner demonstrate that the candidate wastes do not exhibit a
hazardous characteristic.
C. What factors must the EPA consider in deciding whether to grant a
delisting petition?
In reviewing this petition, we considered the original listing
criteria and the additional factors required by the Hazardous and Solid
Waste Amendments of 1984 (HSWA). See section 222 of HSWA, 42 U.S.C.
6921(f), and 40 CFR 260.22(d)(2) through (4). We evaluated the
petitioned waste against the listing criteria and factors cited in 40
CFR 261.11(a)(2) and (3).
In addition to the criteria in 40 CFR 260.22(a), 261.11(a)(2) and
(3), 42 U.S.C. 6921(f), and in the background documents for the listed
wastes, the EPA also considered any factors (including additional
constituents) other than those for which we listed the waste if these
additional factors could cause the waste to be hazardous.
Our proposed decision to grant the petition to delist the waste
from the Petitioner's Kalama, Washington facility is based on our
evaluation of the waste for factors or criteria which could cause the
waste to be hazardous. These factors included: (1) Whether the waste is
considered acutely toxic; (2) the toxicity of the constituents; (3) the
concentration of the constituents in the waste; (4) the tendency of the
constituents to migrate and to bioaccumulate; (5) the persistence in
the environment of any constituents once released from the waste; (6)
plausible and specific types of management of the petitioned waste; (7)
the quantity of waste produced; and (8) waste variability.
The EPA must also consider as hazardous wastes mixtures containing
listed hazardous wastes and wastes derived from treating, storing, or
disposing of listed hazardous waste. See 40 CFR 261.3(a)(2)(iv) and
(c)(2)(i), called the ``mixture'' and ``derived-from'' rules,
respectively. Mixture and derived-from wastes are also eligible for
exclusion but remain hazardous until excluded.
III. EPA's Evaluation of the Waste Information and Data
A. What waste did the Petitioner petition the EPA to delist?
The Petitioner manufactures various organic chemicals used as
artificial flavors and fragrances, food preservatives, plasticizers,
and intermediates at their facility in Kalama, Washington. Most of the
chemicals produced are derived from toluene or from the oxidation
products of toluene, including benzoic acid and benzaldehyde.
Additional products are produced as derivatives of benzoic acid and
benzaldehyde. Products are typically purified by continuous or batch
distillation. In conjunction with its manufacturing processes, the
Petitioner operates an industrial wastewater treatment system,
consisting of an anaerobic digestion process and an aerobic oxidation
system, both of which are biological treatment systems very similar to
municipal wastewater treatment systems. This treatment system produces
industrial wastewater treatment plant biological solids (IWBS). As
documented in the Petitioner's delisting petition, the IWBS designates
as U019 (benzene) and U220 (toluene). The Petitioner has requested that
up to
[[Page 3055]]
3,500 cubic yards of IWBS be excluded from the list of hazardous
wastes.\3\
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\3\ The delisting petition submitted by the Petitioner requested
exclusion of a waste volume different than those cited in this
proposed rulemaking. The EPA notes that the requested quantity of
waste in the delisting petition itself was expressed on a mass (ton)
basis rather than the volume basis in this proposed rulemaking. See
further discussion of this point in Section C of this preamble.
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B. How does the Petitioner generate the waste?
The Petitioner's petition documents that its industrial wastewater
treatment system from which IWBS are derived manages wastewaters from
multiple sources within the facility. The first source consists of
contaminated groundwater from an extensive groundwater recovery system
to prevent contaminated water from leaving the plant site. Water pumped
from the North Impact Area (NIA), West Impact Area (WIA), and
Intermediate Sand Recovery Wells (ISRW) contains commercial product
toluene from historical releases and therefore the IWBS carry the
listed dangerous waste code U220 (toluene). Historical data from May
2013 through April 2021 indicates that an average of 31.5 million
gallons per year with a maximum of 38.6 million gallons per year of
contaminated groundwater was treated in the wastewater treatment unit
(WWTU) that generates IWBS. See Docket Entries starting with suffixes
``-DRAFT-0056'' through ``-DRAFT-0063.'' The second source consists of
stormwater that falls on the manufacturing process areas of the
facility, which may become contaminated by spills or releases of the
various raw materials, intermediates, products, or byproducts of its
manufacturing operations. The third source consists of process
wastewater from manufacturing processes. These second and third sources
may be impacted by trace amounts of pure product benzene from de
minimus spills that are captured by the treatment system; therefore,
the IWBS from the second and third source categories carry the listed
dangerous waste code U019 (benzene).
The Petitioner provided the EPA with a detailed process flow
diagram (Docket Entry 0-017-050-Model-BIOX Plant Process Flow Diagram-
DRAFT-0029) of the overall wastewater management system that documents
the source of all wastewaters from which the candidate IWBS are
generated and the various management processes that are applied to the
wastewaters. Generally, process wastewater expected to have higher
quantities of organic constituents from process units is routed to
either the anaerobic digesters (ANTS) or to the aerobic digesters
(BIOX), depending upon the types and concentrations of chemicals
present. The effluent from the ANTS is routed to the BIOX for final
treatment. Groundwater and stormwater \4\ with a low chemical oxygen
demand (COD) are routed to the aerobic digesters (BIOX). This process
flow arrangement, including flexibility to re-route wastewaters
depending on their chemical makeup, ensures that concentrated free
product from manufacturing process wastes or from spills is not
introduced into the balance of the wastewater treatment system, and
that the concentration of waste constituents entering the treatment
system is maintained in a range that fosters microbial degradation.
Wastewaters from the American Petroleum Institute (API) phase separator
are then routed to the aerobic digester system. The use of the API
separator for wastewaters expected to have higher levels of organic
constituents helps ensure that significant excursions (variations) in
waste composition do not adversely affect performance of the wastewater
treatment system. The effluent of the ANTS system is then routed to the
aerobic digester and sludge filtration systems. Groundwater and
stormwater expected to have lower COD levels bypass the API separator
and are fed directly to the aerobic digester treatment system. This
arrangement of the overall wastewater management system from which IWBS
is generated is expected to operate consistently and effectively, such
that characterization data of the influent wastewater and the resulting
IWBS provided by the Petitioner are representative of on-going
operation of the system.
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\4\ The Petitioner also provide the EPA with a map of the
facility indicating areas where stormwater is collected from various
areas of the facility. See Docket Entry 3-002-000 Storm Water
Collection Map. DRAFT-0030.
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C. How does the Petitioner sample and analyze the waste?
The Petitioner regularly collected and analyzed samples of the IWBS
for various constituents on a monthly, quarterly, or annual basis from
January 1998 through April 2015, when the delisting petition was
submitted.\5\ These data are summarized in Table A-1 in Appendix A of
the petition. See Docket Entry EPA-R10-RCRA-2018-0661-DRAFT-0034.
Hazardous constituents for which routine analytical data are presented
in the Petitioner's petition include benzene and toluene, and a suite
of metals including copper, nickel, zinc, cobalt, lead, cadmium,
arsenic, selenium, chromium, molybdenum, mercury and barium. Metals
values were generally consistent over the measurement period, with
copper values showing over an order of magnitude difference between the
highest and lowest values.
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\5\ The EPA notes that these data were gathered well before the
Petitioner's submission of their delisting petition, and for
technical and regulatory purposes other than delisting. Therefore,
these data do not exactly match the information needs of the
delisting process, although they do provide substantial and valuable
characterization of the IWBS waste stream. As noted in the balance
of this preamble, the Petitioner submitted supplemental
characterization data as necessary to fully characterize the IWBS
waste stream for purposes of delisting.
---------------------------------------------------------------------------
Toluene was detected in one sample of IWBS between 1998 and 2014 at
a concentration of 69 micrograms per kilogram (ppb) reported on a dry
weight basis, with thirteen non-detect values reported with detection
limits ranging from 44 to 3,800 parts per billion. Benzene was not
detected during this period, with fifteen samples reported as non-
detect with detection limits ranging from 44 to 3,800 parts per
billion.
The Petitioner had two Toxicity Characteristic Leaching Procedure
(TCLP) analyses performed on the IWBS in 2000 and in 2014. The results
were consistent and demonstrated that the IWBS do not exhibit the
toxicity characteristic. The data are presented in Table A-2 in
Appendix A of the petition. See Docket Entry EPA-R10-RCRA-2018-0661-
DRAFT-0034.
The EPA developed preliminary delisting levels for the IWBS using
the EPA's Hazardous Waste Delisting Risk Assessment Software (DRAS)
Version 3.0 and provided them to the Petitioner. The procedure for
doing so is described in Enclosure 1 to Docket Entry EPA-R10-RCRA-2018-
0661-DRAFT-0044, with the results provided in Docket Entry EPA-R10-
RCRA-2018-0661-DRAFT-0046. These preliminary delisting levels were
based on initial estimates of the project waste generation volume.
These data were used by the Petitioner and the EPA as an initial
indication of the required level of data quality, particularly the
sensitivity required for laboratory analytical methods, for waste
characterization sampling data.
Subsequent to submission of its delisting petition, the EPA
requested certain additional data from the Petitioner. First, to ensure
data on the petitioned waste annual generation volume could be
converted from a mass to a volume basis necessary for input to
[[Page 3056]]
the DRAS model, the Petitioner provided data documenting the density of
the IWBS as 0.67 tons/cubic yard, based on the average of six samples
of IWBS (Docket Entries IWBS Delisting email 030302020-DRAFT-0035 and
EPA-R10-RCRA-2018-0661-DRAFT-0045).
Second, based on its evaluation of its initial DRAS model runs, the
EPA identified that cobalt could not be shown to satisfy the calculated
delisting levels based solely on the total data documented in the
petition and a bounding assumption that all constituents would leach
from the waste in the absence of an analysis of a TCLP extract of the
waste. See Docket Entries DRAS-3-COCs-12202018-DRAFT-0052, DRAS-3-COCs-
12272018-DRAFT-0053, DRAS-3-inputs-12202018-DRAFT-0054 and DRAS-3-
inputs-12272018-DRAFT-0055. The EPA requested that the Petitioner
provide supplemental data for cobalt that documented paired data for
both total and TCLP extract analysis. (See Docket Entries IWBS
Supplemental Information-DRAFT-0037, Biosolids Analytical Data 031919-
DRAFT-0036 and IWBS Supplemental Information email 04172019-DRAFT-
0038). The Petitioner submitted supplemental data for both total and
TCLP extract analysis for copper, nickel, zinc, cobalt, and barium, and
total data for benzene via email 3/3/2020 (See Docket Entries IWBS
Delisting email 030302020 DRAFT-0035, RE_IWBS Supplemental Information
email 04242019DRAFT-0041, K1901520-DRAFT-0040, RE_IWBS Supplemental
Information email 04242019-DRAFT-0041 and K1903215-DRAFT-0042).
The data results showed that copper, nickel, zinc, and barium met
the initial DRAS model run limits for the TCLP extract of the waste;
and cobalt, copper, nickel, zinc, and barium met the initial DRAS model
run for the total concentration of the waste.
D. What were the results of the EPA's analysis of the Petitioner's
waste?
The first step in the EPA's analysis of the petitioned waste was to
establish a list of potential constituents of concern (COCs) to guide
further analysis of the waste and to establish initial delisting
exclusion criteria. The EPA applied four criteria for identifying
potential constituents of concern: (1) Whether the constituent is used
as an input to, or created as an intermediate, byproduct or finished
product from the Petitioner's production processes; (2) whether the
IWBS designates as hazardous for a particular constituent; (3) the
expected frequency of occurrence in the IWBS; and (4) the toxicity of
the constituent of concern.
The EPA first considered organic COCs. Based on the hazardous waste
codes associated with wastewater that ultimately results in generation
of IWBS (D018, U019, U220, U154, and U001), the EPA determined that
benzene, toluene, methanol and acetaldehyde are COCs.\6\ The EPA notes
that benzene is generally regarded as difficult to treat and is an
excellent indicator of overall performance of the WWTU processes, and
the ability of the WWTU to effectively treat other organic constituents
other than benzene. Based on principle products of the Petitioner's
production processes, the EPA determined that five additional organic
constituents--benzaldehyde, benzoic acid, formic acid, benzyl alcohol,
and phenol--should be retained as COCs in the IWBS. While at least some
of these constituents are associated with products for human
consumption or exposure, they exhibit a level of toxicity that warrants
retention as COCs for purposes of evaluating the candidate waste
stream.
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\6\ As noted in the delisting petition, IWBS designate only for
U019 (benzene) and U220 (toluene) because, due to an exception to
RCRA's derived from rule, certain codes applicable to the wastewater
do not carry through to the IWBS. However, as part of its evaluation
of the IWBS waste stream and identification of COCs, the EPA also
considered hazardous waste codes applicable to the wastewater
managed by the WWTU generating IWBS. Although the F003 waste code
applies to wastewater managed by the WWTU, EPA did not retain
acetone as a constituent of concern on the basis that the process
information provided by Emerald does not provide any evidence that
acetone is associated with this waste stream.
---------------------------------------------------------------------------
Several additional organic constituents are associated with the
Petitioner's production processes. However, they are associated with
products for human consumption or exposure, such as food preservatives
and vitamins, fragrances and perfumes, and sunscreens, and do not
exhibit a degree of toxicity that warrants retention as COCs (Docket
Entry EPA-R10-RCRA-2018-0661-DRAFT-0022). In addition, most, if not
all, of these additional organic constituents are highly amenable to
biological treatment in the WWTU and are not expected to be present in
the IWBS at levels significantly below health-based levels that would
be of concern in the delisting process.
The Petitioner's production process uses a range of catalysts,
including several metallic catalysts that include cobalt, copper and
nickel. On this basis, cobalt, copper and nickel are identified as
constituents of concern. Although these three metals are not hazardous
constituents, they are retained as ``other factors'' (as discussed in
Section I of this preamble) that may cause the waste to be retained as
hazardous. Other metallic constituents reported to have been detected
in the IWBS waste stream do not have a clear source related to the
Petitioner's organic manufacturing process. These constituents include
barium and zinc. Barium is a hazardous constituent and is present at
detectable levels in the IWBS so barium is retained as an ``other
factor'' that may cause the waste to be retained as hazardous. Zinc is
a common contaminant in industrial wastewater and is found in the IWBS
at concentrations as high as 1,350 ppm dry weight, so zinc is retained
as an ``other factor'' that may cause the waste to be retained as
hazardous.
In the Petitioner's production process, cobalt is used as a
catalyst in both its metallic form (sponge cobalt) and as cobalt
acetate. The acetate functional group is expected to be readily
degraded in the WWTU, leaving metallic cobalt in the IWBS. Further,
cobalt acetate is soluble in water, so that any remaining cobalt
acetate that is not degraded to metallic cobalt in the WWTU is likely
to partition (separate) into the effluent wastewater managed separately
from the IWBS. Thus, all forms of cobalt are considered to be metallic
for purposes of the delisting evaluation of the IWBS.
The final list of constituents of concern evaluated in the
delisting process are documented in Table 2 of this preamble.
E. How did the EPA evaluate the risk of delisting this waste?
For this delisting determination, we evaluated the risk that the
waste would be disposed of as a non-hazardous waste in an unlined
landfill which the EPA considers a reasonable worst-case mismanagement
scenario. In evaluating this scenario, we considered transport of waste
constituents through ground water, surface water and air. We evaluated
the Petitioner's analysis of petitioned waste using the DRAS software
to predict the concentrations of hazardous constituents that might be
released from the petitioned waste and to determine if the waste would
pose a threat to human health and the environment. The DRAS software
and associated documentation can be found at www.epa.gov/hw/hazardous-waste-delisting-risk-assessment-software-dras.
To predict the potential for release to groundwater from landfilled
wastes and subsequent routes of exposure to a receptor, the DRAS uses
dilution attenuation factors derived from the EPA's Composite Model for
leachate migration with Transformation Products. From a release to
ground
[[Page 3057]]
water, the DRAS considers three potential routes of exposure to a human
receptor: Ingestion of contaminated groundwater; inhalation from
groundwater while showering; and dermal contact from groundwater while
bathing.
From a release to surface water by erosion of waste from an open
landfill into storm water run-off, DRAS evaluates the exposure to a
human receptor from fish ingestion and ingestion of drinking water.
From a release of waste particles and volatile emissions to air from
the surface of an open landfill, DRAS considers three potential routes
of exposure to a human receptor: Inhalation of volatile constituents;
inhalation of particles; and air deposition of particles on residential
soil and subsequent ingestion of the contaminated soil by a child. The
technical support document and the user's guide to DRAS are available
at https://www.epa.gov/hw/hazardous-waste-delisting-risk-assessment-software-dras.
The EPA used the following inputs to its DRAS analysis of the
Petitioner's waste, as summarized in Table 1 of this preamble. An image
of the DRAS input screen is provided in Docket Entry DRAS-4.0-inputs-
DRAFT-043.
Table 1--Delisting DRAS Input
------------------------------------------------------------------------
DRAS input parameter Value Assumptions
------------------------------------------------------------------------
Waste Management Unit Type.... Landfill......... Waste planned for
disposal in a
municipal solid
waste landfill.
Waste Volume--annual Up to 3,500 cubic Conservative
generation. yards/year. estimation value
based on facility-
specific
information.
Waste Management Unit Active 20 years......... Selected based on the
Life. DRAS default value.
Target risk--carcinogenic risk 1 x 10-\5\....... Based on risk ranges
level. in the EPA's RCRA
Delisting Technical
Support Document
(2008).
Target risk--health quotient.. 1.0.............. Based on risk ranges
in the EPA's RCRA
Delisting Technical
Support Document
(2008).
Detection limits.............. 0.5.............. Non-detect samples
will be run as half
the value.
------------------------------------------------------------------------
At a target cancer risk of 1 x 10-5 and a target hazard
quotient of 1.0, the DRAS program determined maximum allowable
concentrations for each constituent in both the waste and the leachate.
The EPA used the maximum estimated annual waste volume and the maximum
reported total and estimated leachate concentrations as inputs to
estimate the constituent concentrations in the ground water, soil,
surface water or air. Table 2, of this preamble, documents the
constituent-specific maximum total and TCLP sample results used as
input to the DRAS analysis, and the resulting modeling results from
DRAS using an annual waste volume of 3,500 cubic yards per year.
Table 2--Sampling Data and DRAS Modeling Results
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maximum observed concentration Modeling results
\1\ ----------------------------------------------------------------------------------
-------------------------------- Total concentrations TCLP concentration
Constituent of concern ----------------------------------------------------------------------------------
Total \1\ (mg/ TCLP (mg/L) Limiting Limiting
kg) \4\ concentration Limiting pathway \3\ concentration Limiting pathway \3\
(mg/kg) \2\ (mg/L) \ 2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Acetaldehyde......................... N/A N/A 255,000,000 Air Particulate 8.65 Groundwater Inhalation.
Inhalation.
Barium............................... 980 0.77 10,400,000 Fish Ingestion.......... 74.8 Maximum Contaminant
Level.
Benzaldehyde......................... N/A N/A 26,300,000 Fish Ingestion.......... 6.08 Groundwater Ingestion.
Benzene.............................. <3.8 U <0.2 U 276,000 Air Volatile Inhalation. 0.166 Maximum Contaminant
Level.
Benzoic Acid......................... N/A N/A 8,460,000,000 Fish Ingestion.......... 5,000 Groundwater Ingestion.
Benzyl alcohol....................... N/A N/A 813,000,000 Fish Ingestion.......... 125 Groundwater Ingestion.
Cobalt............................... 3,660 1.26 62,300 Air Particulate 0.583 Groundwater Ingestion.
Inhalation.
Copper............................... 7,520 0.29 463,000 Fish Ingestion.......... 19 Maximum Contaminant
Level.
Formic Acid.......................... N/A N/A 145,000 Air Volatile Inhalation. 174 Groundwater Inhalation.
Methanol............................. N/A <0.75 U 3,030,000,000 Air Volatile Inhalation. 2,500 Groundwater Ingestion.
Nickel............................... 422 0.35 402,000 Air Particulate 29.2 Groundwater Ingestion.
Inhalation.
Phenol............................... N/A N/A 1,300,000,000 Fish Ingestion.......... 375 Groundwater Ingestion.
Toluene.............................. 0.069 N/A 37,600,000 Fish Ingestion.......... 32.6 Maximum Contaminant
Level.
Zinc................................. 1,350 1.1 4,790,000 Fish Ingestion.......... 426 Groundwater Ingestion.
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Maximum concentration documented in the Petitioner's delisting petition, Tables A-1 and A-2, except for cobalt and zinc. The cobalt TCLP data are as
reported via email 4/17/2019 with a corresponding maximum TCLP concentration of 1.2 mg/L. See docket Entries EPA-R10-RCRA-2018-0661-DRAFT-0036, -0037
and -0038. The zinc TCLP data are as reported via email 3/1/2019 with a corresponding maximum TCLP concentration of 1.1 mg/L.
2. The Limiting Concentration is the lowest risk-based concentration developed in DRAS for the potential receptor pathways and specified target risk
levels. See text in Section IV.B for the EPA's consideration of limiting concentrations exceeding 1,000,000 mg/kg for total concentrations or
1,000,000 mg/L for TCLP concentrations.
3. The Limiting Pathway is the corresponding potential receptor pathway for the Limiting Concentration.
[[Page 3058]]
4. For detected constituents, the maximum analytical result was used. For non-detect constituents (annotated with a ``U''), the practical quantitation
limit (PQL) was used.
5. Note: The italicized cell (cobalt) indicate exceedance of COC Concentration Input over the Limiting Concentration in the DRAS modeling.
F. What are the EPA's proposed findings regarding the petitioned waste?
The maximum reported concentrations of the hazardous constituents
found in this waste are presented in the Table 2 of this preamble. The
table also presents the maximum allowable concentrations using an
expected maximum annual waste volume of 3,500 cubic yards per year.
Except for cobalt, all other COCs in Table 2 of this preamble have
maximum observed concentrations below the Limiting Concentration from
the DRAS modeling. Since the benzene TCLP was non-detected at 0.2 mg/L,
the DRAS modeling assumed a value of one-half (0.1 mg/L), which is less
than the Limiting Concentration from the DRAS modeling for benzene.
As shown in Table 2 of this preamble, the maximum observed
concentration for cobalt in a TCLP extract of the waste was 1.26 mg/L,
which exceed the Limiting Concentration for cobalt of 0.583 mg/l from
the DRAS modeling. The Petitioner sampled the IWBS for cobalt TCLP six
times during January 2019 through April 2019. See Docket Entries EPA-
R10-RCRA-2018-0661-DRAFT-0036, -0037 and -0038. The TCLP analytical
results for cobalt in the IWBS ranged from 0.45 mg/L to 1.26 mg/L. At
the cobalt result of 0.45 mg/L TCLP, the IWBS meets the Limiting
Concentration from the DRAS modeling using an expected maximum annual
waste volume of 3,500 cubic yards per year. Because the sampling data
for cobalt indicates that the limiting value for cobalt based on a
maximum annual waste volume of 3,500 cubic yards per year may be
exceeded, we performed DRAS modelling to determine the TCLP limiting
concentration for cobalt for a range of annual waste volumes ranging
from 1,000 to 3,500 cubic yards per year.\7\ The results of these model
runs are presented in Table 3 of this preamble.
---------------------------------------------------------------------------
\7\ The DRAS inputs used for these runs are identical to those
documented in Docket entry DRAFT-043 DRAS-4.0-inputs.pdf, except
that the maximum annual waste volume was varied between 1,000 and
3,500 cubic yards/year.
Table 3--DRAS Modeling Results for Cobalt
------------------------------------------------------------------------
Annual waste volume (cubic yards Modeling results--TCLP limiting
per year) concentration (mg/L)
------------------------------------------------------------------------
1,000 1.99
1,100 1.81
1,200 1.66
1,300 1.54
1,400 1.43
1,500 1.34
1,600 1.25
1,700 1.18
1,800 1.12
1,900 1.06
2,000 1.01
2,100 0.961
2,200 0.918
2,300 0.879
2,400 0.843
2,500 0.810
2,600 0.780
2,700 0.751
2,800 0.725
2,900 0.700
3,000 0.678
3,100 0.656
3,200 0.636
3,300 0.617
3,400 0.599
3,500 <=0.583
------------------------------------------------------------------------
As shown in Table 3 of this preamble, as the annual waste volume
increases, the TCLP Limiting Concentration for cobalt decreases. More
specifically, the product of waste volume and the TCLP limiting
concentration remains constant at 2,000 yds\3\-mg/L (to two significant
figures). Based on these calculations, the EPA is proposing that the
exclusion criteria for cobalt be based on a cobalt budget concept.
Rather than specify an exclusion limit based on a fixed TCLP limiting
concentration and a corresponding maximum annual waste volume, the
compliance limit will be established based on a running total
calculated for each batch. This running total can be expressed
mathematically as:
[GRAPHIC] [TIFF OMITTED] TP20JA22.000
Where:
Vi = the volume of each batch in cubic yards (yd\3\);
Ci = the concentration of cobalt in a TCLP extract of
each batch;
n = number of batches generated per calendar year
This running total begins at zero for each annual period, starting
with the effective date of this exclusion, if finalized. As each batch
is generated, the running total is updated with the batch contribution
according to the formula above. The batch volume is expressed in cubic
yards but may be measured in practice by the weight of each batch
divided by the density of 0.67 tons/cubic yard (See Section III.C of
this preamble).\8\ As long as this running total remains below 2,000,
IWBS that otherwise meets the numerical exclusion criteria according to
the conditions of this approval and does not exhibit a hazardous
characteristic may be disposed of in a Subtitle D disposal unit. Once
the cobalt budget limit of 2,000 is exceeded, all subsequent batches of
IWBS must be managed as hazardous for the balance of the annual period.
The EPA notes that wastes with cobalt results greater than 1.99 mg/l in
an extract of the waste cannot be excluded under this delisting, as
documented in Table 4 of this preamble. EPA's rationale for this upper
bound on concentration is that it corresponds to the maximum annual
quantity of waste modeled by DRAS for all other constituents of
concern.
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\8\ The EPA is applying this density based on available
information provided by the Petitioner as part of the petition
submittal process. As explained below, the EPA will require the
Petitioner to gather additional density data during the first annual
period under this exclusion, if finalized. If these additional
density data support use of a revised density for the cobalt budget
calculation, the EPA will provide the Petitioner approval to use the
revised density according to Condition 2 of the proposed exclusion.
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One of the key elements of this cobalt budget mechanism is that it
requires analytical data characterizing each batch of IWBS.\9\ In
discussing this issue with the Petitioner, EPA learned that using an
outside commercial analytical laboratory for this batch-by-batch
analysis would complicate the logistics of managing filled containers
of IWBS pending receipt and evaluation of outside laboratory data. To
address this logistics problem the Petitioner proposed developing an
in-house method that would provide faster turnaround and thus faster
disposal
[[Page 3059]]
decisions for each batch of IWBS. This method is a colorimetric
procedure which is applied to an extract of IWBS generated using SW-846
Method 1311.
---------------------------------------------------------------------------
\9\ Other waste constituents considered in this exclusion do not
approach the applicable limiting concentration calculated by DRAS.
Therefore, constituents other than cobalt considered in this
proposed exclusion do not warrant batch-by-batch sampling.
---------------------------------------------------------------------------
The Petitioner shared an early draft of the proposed method (Docket
Entry Method-TCLP-Cobalt-draft-DRAFT-0047), on which the EPA reviewed
and provided several comments. EPA's comments and the Petitioners
responses are documented in Docket Entry EPA and Ecology comments Rev 0
08172021-DRAFT-0048, with the final method documented in Docket Entry
Method-TCLP-Cobalt-Rev1.0-DRAFT-0049. After resolving these comments,
the Petitioner obtained paired data on an extract of IWBS prepared in-
house following SW-846 Method 1311, followed by analysis of the extract
at an off-site commercial laboratory using SW-846 Method 6010C and an
in-house analysis of the same extract using the in-house colorimetric
method. These data are presented in Docket Entry RE_Emerald-Kalama
Delisting Check-In and Planning--meeting follow-up-DRAFT-0051. To
evaluate these data, the EPA performed a two-point percent relative
difference analysis on each paired data point. The percent relative
difference is calculated using the formula:
[GRAPHIC] [TIFF OMITTED] TP20JA22.001
Where:
%RBD = percent relative difference;
X1 and X2 = paired data
The paired data are presented below, along with the calculated
percent relative difference:
Table 4--Paired Data Comparison, TCLP Extract Analysis for Cobalt
------------------------------------------------------------------------
Petitioner Independent lab
Sample No. analysis analysis %RPD
------------------------------------------------------------------------
1 0.48 0.49 2.1
2 0.55 0.58 5.3
3 0.75 0.74 1.3
4 0.56 0.54 3.6
5 0.27 0.29 7.1
6 0.34 0.32 6.1
7 0.56 0.57 1.8
8 0.54 0.53 1.9
9 0.48 0.52 8.0
10 0.38 0.37 2.7
------------------------------------------------------------------------
The calculated relative percent difference indicates that the
results from in-house and outside laboratory are in close agreement,
with the calculated relative percent difference ranging from 1.3
percent to 8.0 percent. The EPA notes that a typical analytical
laboratory performance for paired data from a single sample results in
a relative percent difference of 30%. Therefore, the
relative percent difference between the Petitioner's in-house method
and a standard outside laboratory method compare very favorably to the
variability seen for multiple laboratory analysis of a single sample.
On this basis, the EPA has determined that the Petitioner's in-house
method for analyzing an extract of the IWBS obtained through an SW-846
Method 1311 TCLP procedure can be used for obtaining batch-by-batch
cobalt data for use with the cobalt budget mechanism described above.
Because this cobalt budget tool is a novel application of DRAS
modelling output to an exclusion, the EPA has determined that it is
appropriate to review implementation of this model based on real-world
experience. Therefore, the EPA is proposing a reporting requirement at
the end of each anniversary of operations under this proposed
exclusion. Under this requirement, the Petitioner must report all
verification data obtained during each year following the effective
date of this exclusion, including measurement of IWBS density and
additional paired data for cobalt in an extract of the waste according
to Condition 1 of this proposed exclusion. These additional data will
provide the EPA with an opportunity to verify that the mechanism is
operating as intended, and if warranted, to initiate any changes to the
delisting rule to ensure the criteria of 40 CFR 260.22 will continue to
be satisfied. EPA is providing a mechanism whereby the Petitioner may
request relief from this requirement following the first year of
reporting. If EPA agrees that further reporting is not warranted, EPA
will provide the Petitioner a written response providing future relief
from this requirement. EPA will, of course, retain its statutory
authority under RCRA Sec. 3008(a) to inspect records required by this
exclusion and to enforce its terms and conditions.
Because it is likely that the Petitioner will monitor IWBS
production on a weight basis (it is much easier and more accurate to
weigh each IWBS roll-off box than to measure the volume of waste in the
roll-off box), the EPA is requiring the Petitioner to document the
density of each batch of IWBS during the first year of operations to
verify that the reported density of 0.67 tons/cubic yard supporting the
petition is representative of the waste over an entire annual period.
Should additional data provide a basis to revise the 0.67 tons/cubic
yard density, the EPA may provide the Petitioner with written approval
to use an updated value pursuant to Condition 6.
The Petitioner sampled the IWBS for benzene TCLP twice; once in
2000 with a result of non-detected at 0.15 mg/L and once in 2014 with a
result of non-detected at 0.2 mg/L. The Limiting Concentration from the
DRAS modeling for TCLP benzene is 0.166 mg/L. The PQL for the 2014 TCLP
benzene sample was greater than the Limiting Concentration of 0.166 mg/
L TCLP, although the model used one-half the detection limit. Based on
the benzene total concentrations of the IWBS, we conclude that the
Limiting Concentration from DRAS for TCLP benzene will not be exceeded.
Verification sampling is required to confirm this, with appropriate
data quality to allow direct comparison between the laboratory results
and the delisting exclusion limit of 0.166 mg/l in an extract of the
waste.
We therefore conclude that the Petitioner's wastewater treatment
sludge (IWBS) is not a substantial or potential hazard to human health
and the environment when disposed of in a Subtitle D landfill according
to the conditions of this proposed exclusion. Further, the data
presented by the Petitioner in their petition supports the EPA's
conclusion that the petitioned waste does not exhibit any hazardous
[[Page 3060]]
characteristic, and that there are no other factors that would warrant
retaining the waste as hazardous. On this basis, we propose to grant
the Petitioner's petition to delist this waste. If this exclusion is
finalized, and subject to the conditions of the final delisting, the
Petitioner must dispose of the allowed amount of waste (based on the
verification approach documented in the rule) in a Subtitle D landfill
permitted or licensed by a state and will remain obligated to verify
that the waste continues to meet the allowable concentrations set forth
here. The Petitioner must also continue to demonstrate that the waste
does not exhibit any hazardous characteristics pursuant to 40 CFR part
261 subpart C.
IV. Conditions for Exclusion
A. How will the Petitioner manage the waste if it is delisted?
If the petitioned waste is delisted, the Petitioner must dispose of
it in a Subtitle D landfill which is permitted, licensed, or registered
by a state to manage industrial waste.
B. What are the maximum allowable concentrations of hazardous
constituents in the waste?
Concentrations measured in the waste of the following constituents
must not exceed the concentrations in Table 5 below.
Table 5--Verification Constituents and Compliance Concentrations
------------------------------------------------------------------------
Total
concentration TCLP concentration
Constituent DRAS model (mg/ DRAS model (mg/l)
kg)
------------------------------------------------------------------------
Acetaldehyde...................... N/A 8.65.
Barium............................ N/A 74.8.
Cobalt............................ 62,300 cobalt budget
mechanism.
Copper............................ 463,000 19.0.
Nickel............................ 402,000 29.2.
Zinc.............................. N/A 426.
Benzaldehyde...................... N/A 6.08.
Benzene........................... 276,000 0.166.
Benzoic Acid...................... N/A 5,000.
Formic Acid....................... 145,000 174.
Benzyl alcohol.................... N/A 125.
Methanol.......................... N/A 2,500.
Phenol............................ N/A 375.
Toluene........................... N/A 32.6.
------------------------------------------------------------------------
The EPA notes that in multiple instances the maximum allowable
total constituent concentrations provided by the DRAS model exceed 100%
of the waste--these DRAS results are an artifact of the risk
calculations and do not have physical meaning (since it is not possible
to have a concentration greater than 100%). In instances where DRAS
predicts a maximum constituent greater than 100 percent of the waste
(that is, greater than 1,000,000 mg/kg or mg/L, respectively, for total
and TCLP concentrations), the EPA is not requiring the Petitioner to
perform sampling and analysis for that constituent and sampling type
(total or TCLP). In these instances, the corresponding entry in Table 5
of this preamble is ``N/A.''
C. How frequently must the Petitioner test the waste?
To fully verify that the Petitioner's waste complies with the
verification limits of this proposed exclusion are satisfied on an on-
going basis, and because the Petitioner operates multiple generation
processes that could alter the concentration of waste constituents from
which IWBS is derived, the Petitioner must analyze a representative
sample of the wastewater treatment sludges on a periodic basis to
demonstrate that the constituents of concern in the petitioned waste do
not exceed the concentrations of concern in Section IV.B of this
preamble. The EPA is proposing that the Petitioner sample its delisted
waste (for the constituents in Table 5 of this preamble, except cobalt)
every ten roll-off boxes, estimated to be generated at a rate of three/
week.\10\ This would result in approximately 16 samples per year. The
Petitioner must analyze a representative sample of each batch (roll-off
box) of the wastewater treatment sludges for cobalt TCLP concentration.
The Petitioner will use the batch cobalt TCLP concentration, volume of
IWBS in the batch, and Formula 1 to determine the running cobalt budget
as discussed in Section III.F of this preamble.
---------------------------------------------------------------------------
\10\ The Petitioner noted logistics issues if a ``10th batch''
must be sampled on a weekend or Federal holiday. See Docket Entry
RE_Emerald-Kalama Delisting Follow-up-DRAFT-0073. To address this,
EPA has added a provision that in such circumstances, the Petitioner
may substitute sampling for the 9th or 11th batch for purposes of
verification sampling.
---------------------------------------------------------------------------
The EPA believes that this sampling rate will provide an
appropriate level of certainty that all delisted waste does indeed meet
the delisting criteria presented in Table 5 of this preamble. As the
Petitioner gathers a more extensive data set of sampling data, the EPA
recognizes that changes to these sampling rates may be warranted.
Therefore, the EPA is including a proposed provision that the
Petitioner may request the EPA's approval for changes to the
verification sampling and analysis frequency. The Petitioner must use
methods with appropriate analytical sensitivity quality control
procedures, as documented in a written quality assurance project plan.
SW-846 Method 1311 must be used for generation of the leachate extract
used in the testing of the subject waste. SW-846 Method 1311 is
incorporated by reference in 40 CFR 260.11.
The Petitioner has provided information to EPA that the Washington
State Department of Ecology does not currently accredit any laboratory
in the state of Washington for analysis of acetaldehyde, benzaldehyde,
or formic acid in samples of solid material. See Docket Entry LAI
Verification Sampling Plan 2020 04 08 final-DRAFT-0074, Section 3.0 and
COCs-Lab-Search-DRAFT-0075. Therefore, the EPA will accept laboratory
analyses result for acetaldehyde, benzaldehyde and formic acid from a
laboratory that otherwise
[[Page 3061]]
holds accreditation for all other analytes.
A total analysis of the waste (accounting for any filterable
liquids and the dilution factor inherent in the TCLP method) may be
used to estimate the TCLP concentration as provided for in section 1.2
of Method 1311, except for weekly cobalt sampling.\11\
---------------------------------------------------------------------------
\11\ For additional details on this approach, see https://archive.epa.gov/epawaste/hazard/web/html/faq_tclp.html.
---------------------------------------------------------------------------
D. What data must the Petitioner submit?
The Petitioner must submit the data obtained through verification
testing to U.S. EPA Region 10, Office of Air and Waste, 1200 6th
Avenue, Suite 155, M/S 15-H04, Seattle, Washington 98101 upon each
anniversary of the effective date of this exclusion.
The Petitioner must compile, summarize, and maintain on-site for a
minimum of five years, records of analytical data required by this
rule, and operating conditions relevant to those data analytical data.
The Petitioner must make those records available for inspection. All
data must be accompanied by a signed copy of the certification
statement in 40 CFR 260.22(i)(12).
E. What happens if the Petitioner fails to meet the conditions of the
exclusion?
If the Petitioner violates the terms and conditions established in
the exclusion, the Agency may start procedures to withdraw the
exclusion.
If the verification testing of the waste does not demonstrate
compliance with the delisting concentrations described in section IV.B
above, or other data (including but not limited to leachate data or
groundwater monitoring data from the final land disposal facility)
relevant to the delisted waste indicates that any constituent is at a
concentration in waste above specified delisting verification
concentrations in Table 5 of this preamble, the Petitioner must notify
the Agency within 10 days of first possessing or being made aware of
the data. The exclusion will be suspended, and the waste managed as
hazardous until the Petitioner has received written approval from the
EPA to continue the exclusion. The Petitioner may provide sampling
results which support the continuation of the delisting exclusion.
The EPA has the authority under RCRA and the Administrative
Procedure Act, 5 U.S.C. 551 (1978) et seq. to reopen a delisting
decision if we receive new information indicating that the conditions
of this exclusion have been violated or are otherwise not being met.
F. What must the Petitioner do if the process changes?
If the Petitioner significantly changes the manufacturing or
treatment process or the chemicals used in the manufacturing or
treatment process, the Petitioner may not handle the wastewater
treatment sludge generated from the new process under this exclusion
until it has demonstrated to the EPA that the waste meets the
concentrations set forth in section IV.B and that no new hazardous
constituents listed in Appendix VIII of 40 CFR part 261 have been
introduced. The Petitioner must manage wastes generated after the
process change as hazardous waste until the Petitioner has received
written notice from the EPA that the demonstration has been accepted.
V. When would the EPA finalize the proposed delisting exclusion?
40 CFR 260.20(c) requires the EPA to provide notice and an
opportunity for comment before granting or denying a final exclusion.
Thus, the EPA will not make a final decision or grant an exclusion
until it has addressed all timely public comments on today's proposal,
including any at public hearings.
Since this proposed rulemaking would reduce the existing
requirements for persons generating hazardous wastes, the regulated
community does not need a six-month period to come into compliance in
accordance with section 3010 of RCRA, 42 U.S.C. 6930, as amended by
HSWA.
VI. How would this action affect states?
Because the EPA is proposing to issue this exclusion under the
federal RCRA delisting regulations, only states subject to federal RCRA
delisting provisions will be affected. This exclusion may not be
effective in states which have received authorization from the EPA to
make their own delisting decisions.
The EPA allows states to impose their own non-RCRA regulatory
requirements that are more stringent than the 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. We urge petitioners to contact the state
regulatory authority to establish the status of their wastes under the
state law.
The EPA has also authorized some states 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 the Petitioner manages the waste in any state
with delisting authorization, the Petitioner must obtain delisting
authorization or other determination from the receiving state before it
can manage the waste as nonhazardous in that state.
While Washington State has received final authorization to
implement most of its dangerous waste program regulations in lieu of
the Federal program, including the listing and identification of listed
waste codes associated with the petitioned wastes, it has not been
authorized to implement its delisting regulations program in lieu of
the Federal program. The EPA notes that Washington State has provisions
in the Washington Administrative Code (WAC) 173-303-910(3) similar to
the Federal provisions upon which this delisting is based. These
provisions are in effect as a matter of state law. Thus, the Petitioner
must seek approval from Washington State at the state level in addition
to this proposed delisting.
VII. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This proposed action is exempt from review by the Office of
Management and Budget because it is a rule of particular applicability,
not general applicability. The proposed action approves a delisting
petition under RCRA for the petitioned waste at a particular facility.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This proposed action is not an Executive Order 13771 regulatory
action because actions such as approval of delisting petitions under
RCRA are exempted under Executive Order 12866.
C. Paperwork Reduction Act
This proposed action does not impose an information collection
burden under the provisions of the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.) because it only applies to a particular facility.
D. Regulatory Flexibility Act
Because this rule is of particular applicability relating to a
particular facility, it is not subject to the regulatory
[[Page 3062]]
flexibility provision of the Regulatory Flexibility Act (5 U.S.C. 601
et seq.).
E. Unfunded Mandates Reform Act
This proposed action does not contain any unfunded mandate as
described in the Unfunded Mandates Reform Act (2 U.S.C. 1531-1538) and
does not significantly or uniquely affect small governments. The
proposed action imposes no new enforceable duty on any state, local, or
tribal governments or the private sector.
F. Executive Order 13132: Federalism
This proposed action does not have federalism implications. It will
not have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This proposed action does not have tribal implications as specified
in Executive Order 13175. This proposed action applies only to a
particular facility on non-tribal land. Thus, Executive Order 13175
does not apply to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This proposed action is not subject to Executive Order 13045
because it is not economically significant as defined in Executive
Order 12866, and because the EPA does not believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This proposed action is not subject to Executive Order 13211,
because it is not a significant regulatory action under Executive Order
12866.
J. National Technology Transfer and Advancement Act
This proposed action does not involve technical standards as
described by the National Technology Transfer and Advancement Act of
1995 (15 U.S.C. 272 note).
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this proposed action does not have
disproportionately high and adverse human health or environmental
effects on minority populations, low-income populations, and/or
indigenous peoples. The EPA has determined that this proposed action
will not have disproportionately high and adverse human health or
environmental effects on minority or low-income populations because it
does not affect the level of protection provided to human health or the
environment.
L. Congressional Review Act
This proposed action is exempt from the Congressional Review Act (5
U.S.C. 801 et seq.) because it is a rule of particular applicability.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, and Reporting
and recordkeeping requirements.
Dated: January 6, 2022.
Davis Zhen,
Acting Director, Land, Chemicals and Redevelopment Division.
For the reasons set out in the preamble, the EPA proposes to amend
40 CFR part 261 as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
0
1. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and
6938.
0
2. In Table 1 of Appendix IX to Part 261 add an entry ``Emerald Kalama
Chemical, LLC'' in alphabetical order to read as follows:
Appendix IX to Part 261--Wastes Excluded Under Sec. Sec. 260.20 and
260.22
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[[Page 3063]]
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[[Page 3064]]
[GRAPHIC] [TIFF OMITTED] TP20JA22.003
[[Page 3065]]
[GRAPHIC] [TIFF OMITTED] TP20JA22.004
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[GRAPHIC] [TIFF OMITTED] TP20JA22.005
[FR Doc. 2022-00728 Filed 1-19-22; 8:45 am]
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