[Federal Register Volume 76, Number 226 (Wednesday, November 23, 2011)]
[Rules and Regulations]
[Pages 72311-72325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-30147]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-R06-RCRA-2009-0312; SW FRL-9490-9]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Final Exclusion
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is granting a
petition submitted by Eastman Chemical Corporation--Texas Operations
(Eastman Chemical) to exclude from hazardous waste control (or delist)
a certain solid waste. This final rule responds to the petition
submitted by Eastman Chemical to delist three waste streams generated
from its rotary kiln incinerator (RKI). These waste streams are the
rotary kiln incinerator (RKI) bottom ash, RKI fly ash, and RKI scrubber
water blowdown. The RKI bottom ash and the RKI fly ash are derived from
the management of several F-, K-, and U-waste codes. These waste codes
are F001, F002, F003, F005, F039, K009, K010, U001, U002, U031, U069,
U107, U112, U117, U140, U147, U161, U213, and U359. The Scrubber water
blowdown produced by the RKI's air pollution control equipment is also
derived from the management of several F-, K-, and U-waste codes as
well as certain characteristic hazardous wastes. These waste codes are
D001, D002, D003, D007, D008, D018, D022, F001, F002, F003, F005, F039,
K009, K010, U001, U002, U031, U069, U107, U112, U117, U140, U147, U161,
U213, and U359. The RKI is authorized to manage a list of additional F-
, K-, U-, and P- codes to cover off-site sources not attributed to the
above waste codes. If these waste codes are not specifically listed in
the delisting exclusion, they are not covered by the exclusion and can
not be managed as non-hazardous, unless and until, the exclusion is
modified to include them.
After careful analysis and evaluation of comments submitted by the
public, the EPA has concluded that the petitioned wastes are not
hazardous waste when disposed of in Subtitle D landfills or in the case
of the scrubber water blowdown, discharged in conjunction with its
TPDES discharge permit. This exclusion applies to the RKI bottom ash,
RKI fly ash and RKI scrubber water blowdown generated at Eastman
Chemical's Longview, Texas facility. Accordingly, this final rule
excludes the petitioned waste from the requirements of hazardous waste
regulations under the Resource Conservation and Recovery Act (RCRA)
when disposed of in Subtitle D landfills or discharged in accordance
with a TPDES permit but imposes testing conditions to ensure that the
future-generated wastes remain qualified for delisting.
DATES: Effective Date: November 23, 2011.
ADDRESSES: The public docket for this final rule is located at the U.S.
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas,
Texas 75202, and is available for viewing in the EPA Freedom of
Information Act review room on the 7th floor from 9 a.m. to 4 p.m.,
Monday through Friday, excluding Federal holidays. Call (214) 665-6444
for appointments. The reference number for this docket is ``EPA-R06-
RCRA-2009-0312''. The public may copy material from any regulatory
docket at no cost for the first 100 pages and at a cost of $0.15 per
page for additional copies.
FOR FURTHER INFORMATION CONTACT: For general information, contact Ben
Banipal, at (214) 665-7324. For technical information concerning this
notice, contact Michelle Peace, U.S. Environmental Protection Agency,
1445 Ross Avenue, Dallas, Texas, (214) 665-7430.
SUPPLEMENTARY INFORMATION: The information in this section is organized
as follows:
I. Overview Information
A. What action is EPA finalizing?
B. Why is EPA approving this delisting?
C. What are the limits of this exclusion?
D. How will Eastman Chemical manage the waste if it is delisted?
E. When is the final delisting exclusion effective?
F. How does this final rule affect states?
II. Background
A. What is a ``delisting''?
B. What regulations allow facilities to delist a waste?
C. What information must the generator supply?
III. EPA's Evaluation of the Waste Data
A. What wastes did Eastman Chemical petition EPA to delist?
[[Page 72312]]
B. How much waste did Eastman Chemical propose to delist?
C. How did Eastman Chemical sample and analyze the waste data in
this petition?
IV. Public Comments Received on the Proposed Exclusion
A. Who submitted comments on the proposed rule?
B. Comments and Responses
V. Statutory and Executive Order Reviews
I. Overview Information
A. What action is EPA finalizing?
The EPA is finalizing:
(1) The decision to grant Eastman's petition to have its RKI Fly
ash, bottom ash and scrubber blowdown water excluded, or delisted, from
the definition of a hazardous waste, subject to certain continued
verification and monitoring conditions; and
(2) to use the Delisting Risk Assessment Software to evaluate the
potential impact of the petitioned waste on human health and the
environment. The Agency used this model to predict the concentration of
hazardous constituents released from the petitioned waste, once it is
disposed.
After evaluating the petition, EPA proposed and issued a direct
final rule, on September 24, 2010 to exclude the Eastman Chemical waste
from the lists of hazardous wastes under Sec. Sec. 261.31 and 261.32.
The direct final rule received adverse comments and was subsequently
withdrawn on November 1, 2010. This decision is based on the proposed
rule issued on September 24, 2010. The comments received on this
rulemaking will be addressed as part of this decision.
B. Why is EPA approving this delisting?
Eastman's petition requests a delisting for the listed hazardous
wastes associated with three waste streams. Eastman does not believe
that the petitioned wastes meet the criteria for which EPA listed it.
Eastman also believes no additional constituents or factors could cause
the waste to be hazardous. EPA's review of this petition included
consideration of the original listing criteria, and the additional
factors required by the Hazardous and Solid Waste Amendments of 1984
(HSWA). See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR
260.22(d)(1)-(4). In making the final delisting determination, EPA
evaluated the petitioned waste against the listing criteria and factors
cited in Sec. Sec. 261.11(a)(2) and (a)(3). Based on this review, the
EPA agrees with the petitioner that the waste is nonhazardous with
respect to the original listing criteria. (If the EPA had found, based
on this review, that the waste remained hazardous based on the factors
for which the waste were originally listed, EPA would have proposed to
deny the petition.) The EPA evaluated the waste with respect to other
factors or criteria to assess whether there is a reasonable basis to
believe that such additional factors could cause the waste to be
hazardous. The EPA considered whether the waste is acutely toxic, the
concentration of the constituents in the waste, their tendency to
migrate and to bioaccumulate, their persistence in the environment once
released from the waste, plausible and specific types of management of
the petitioned waste, the quantities of waste generated, and waste
variability. The EPA believes that the petitioned waste does not meet
these criteria. EPA's final decision to delist waste from Eastman's
facility is based on the information submitted in support of this rule,
i.e., descriptions of the Rotary Kiln Incinerator, and analytical data
from the Longview facility.
C. What are the limits of this exclusion?
This exclusion applies to the waste described in the petition only
if the requirements described in Table 1, 2, and 3 of part 261,
Appendix IX and the conditions contained herein are satisfied. The
exclusion applies to 1,000 cubic yards per calendar year of RKI fly
ash; 750 cubic yards per calendar year of RKI bottom ash; and 643,000
cubic yards (500,000 million gallons) of RKI scrubber water blowdown
waste resulting from the operations of the rotary kiln incinerator at
its facility.
D. How will Eastman Chemical manage the waste if it is delisted?
Eastman will dispose of the fly ash and bottom ash in an onsite
Subtitle D landfill. The scrubber water blowdown will be managed in the
waste water treatment plant (WWTP). The sludge from the WWTP was
delisted in 2000, and there are new waste codes being managed as part
of this petition. See Appendix IX to Part 261, Table 1. All management
occurs on-site and will remain the same after the delisting is granted.
E. When is the final delisting exclusion effective?
This rule is effective November 23, 2011. The Hazardous and Solid
Waste Amendments of 1984 amended Section 3010 of RCRA to allow rules to
become effective in less than six months when the regulated community
does not need the six-month period to come into compliance. That is the
case here because this rule reduces, rather than increases, the
existing requirements for persons generating hazardous wastes. These
reasons also provide a basis for making this rule effective
immediately, upon publication, under the Administrative Procedure Act,
pursuant to 5 U.S.C. 553(d).
F. How does this final rule affect states?
Because EPA is issuing this exclusion under the Federal RCRA
delisting program, only states subject to Federal RCRA delisting
provisions would be affected. This would exclude two categories of
States: States having a dual system that includes Federal RCRA
requirements and their own requirements, and States who have received
our authorization to make their own delisting decisions.
Here are the details: We allow states to impose their own non-RCRA
regulatory requirements that are more stringent than EPA's, under
section 3009 of RCRA. These more stringent requirements may include a
provision that prohibits a Federally issued exclusion from taking
effect in the State. Because a dual system (that is, both Federal
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's
waste, we urge petitioners to contact the State regulatory authority to
establish the status of their wastes under the State law.
EPA has also authorized some States (for example, Louisiana,
Georgia, Illinois) to administer a delisting program in place of the
Federal program, that is, to make State delisting decisions. Therefore,
this exclusion does not apply in those authorized States. If Eastman
Chemical transports the petitioned waste to or manages the waste in any
State with delisting authorization, Eastman Chemical must obtain
delisting authorization from that State before they can manage the
waste as nonhazardous in the State.
II. Background
A. What is a delisting petition?
A delisting petition is a request from a generator to EPA or
another agency with jurisdiction to exclude from the list of hazardous
wastes, wastes the generator does not consider hazardous under RCRA.
B. What regulations allow facilities to delist a waste?
Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to
remove their wastes from hazardous waste control by excluding them from
the lists of hazardous wastes contained in Sec. Sec. 261.31 and
261.32. Specifically, Sec. 260.20 allows any person to petition the
Administrator to modify or revoke
[[Page 72313]]
any provision of Parts 260 through 266, 268 and 273 of Title 40 of the
Code of Federal Regulations. Section 260.22 provides generators the
opportunity to petition the Administrator to exclude a waste on a
``generator-specific'' basis from the hazardous waste lists.
C. What information must the generator supply?
Petitioners must provide sufficient information to EPA to allow the
EPA to determine that the waste to be excluded does not meet any of the
criteria under which the waste was listed as a hazardous waste. In
addition, the Administrator must determine, where he/she has a
reasonable basis to believe that factors (including additional
constituents) other than those for which the waste was listed could
cause the waste to be a hazardous waste, that such factors do not
warrant retaining the waste as a hazardous waste.
III. EPA's Evaluation of the Waste Data
A. What waste did Eastman Chemical petition EPA to delist?
Eastman petitioned EPA on December 1, 2008, to exclude from the
lists of hazardous wastes contained in Sec. Sec. 261.24, 261.31, and
261.32, certain wastes from its rotary kiln incineration system. The
three waste streams included in the petition were: The RKI fly ash, RKI
bottom ash and RKI scrubber water blowdown.
The waste streams are generated from the Eastman facility located
in Longview, Texas. The RKI fly ash and RKI bottom ash are listed under
EPA Hazardous Waste No. F001, F002, F003, F005, F039, K009, K010, U001,
U002, U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359.
The Scrubber water blowdown produced by the RKI's air pollution control
equipment is also derived from the management of several F-, K-, and U-
waste codes as well as certain characteristic hazardous wastes. These
waste codes are D001, D002, D003, D007, D008, D018, D022, F001, F002,
F003, F005, F039, K009, K010, U001, U002, U031, U069, U107, U112, U117,
U140, U147, U161, U213, and U359. Specifically, in its petition,
Eastman requested that EPA grant exclusions for 1,000 cubic yards per
calendar year of RKI fly ash; 750 cubic yards per calendar year of RKI
bottom ash; and 643,000 cubic yards (500,000 million gallons) of RKI
scrubber water blowdown waste resulting from the operations of the
rotary kiln incinerator at its facility.
Eastman intends to dispose of the delisted RKI bottom ash and RKI
fly ash at a on-site Subtitle D Landfill, and the RKI scrubber water
blowdown will be treated in the Wastewater Treatment Plant. Treatment
of process wastes and wastes from captured facilities generate the RKI
bottom ash, RKI fly ash, and RKI scrubber water blowdown that is
classified as F001, F002, F003, F005, F039, K009, K010, U001, U002,
U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359 listed
hazardous wastes pursuant to 40 CFR 261.31 and 261.32. The 40 CFR part
261 appendix VII hazardous constituents which are the basis for listing
can be found in Table 1 and Table 2.
Table 1--EPA Waste Codes for RKI Fly and Bottom Ashes and the Basis for
Listing
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Waste code Basis for listing
------------------------------------------------------------------------
F001......................... Tetrachloroethylene, methylene chloride
trichloroethylene, 1,1,1-
trichloroethane, carbon tetrachloride,
chlorinated fluorocarbons.
F002......................... Tetrachloroethylene, methylene chloride,
trichloroethylene, 1,1,1-
trichloroethane, 1,1,2-trichloroethane,
chlorobenzene, 1,1,2-trichloro-1,2,2-
trifluoroethane, ortho-dichlorobenzene,
trichlorofluoromethane.
F003......................... N.A., xylene, acetone, ethyl acetate,
ethyl benzene, ethyl ether, methyl
isobutyl ketone, n-butyl alcohol,
cyclohexane, methanol.
F005......................... Toluene, methyl ethyl ketone, carbon
disulfide, isobutanol, pyridine, 2-
ethoxyethanol, benzene, 2-nitropropane..
F039......................... All constituents for which treatment
standards are specified for multi-source
leachate (wastewaters and
nonwastewaters) under 40 CFR 268.43,
Table CCW.
K009......................... Chloroform, formaldehyde, methylene
chloride, methyl chloride, paraldehyde,
formic acid.
K010......................... Chloroform, formaldehyde, methylene
chloride, methyl chloride, paraldehyde,
formic acid, chloroacetaldehyde.
U001......................... Acetaldehyde.
U002......................... Acetone.
U028......................... Bis (2-ethyl hexyl) phthalate.
U031......................... n-Butyl alcohol.
U069......................... Dibutyl phthalate.
U088......................... Di-ethyl phthalate.
U107......................... Di-n-octyl phthalate.
U112......................... Ethyl acetate.
U115......................... Ethylene oxide.
U117......................... Ethane, 1,1'-oxybis-(I).
U122......................... Formaldehyde.
U140......................... Isobutyl alcohol.
U147......................... Maleic anhydride.
U154......................... Methanol.
U159......................... Methyl ethyl ketone.
U161......................... Methyl isobutyl ketone.
U213......................... Tetrahydrofuran.
U220......................... Toluene.
U226......................... 1,1,1-Trichloroethane (methyl
chloroform).
U239......................... Xylene.
U359......................... Ethylene glycol monoethyl ether.
------------------------------------------------------------------------
Table 2--EPA Waste Codes for RKI Scrubber Water Blowdown and the Basis
for Listing
------------------------------------------------------------------------
Waste code Basis for listing
------------------------------------------------------------------------
F001......................... Tetrachloroethylene, methylene chloride
trichloroethylene, 1,1,1-
trichloroethane, carbon tetrachloride,
chlorinated fluorocarbons.
[[Page 72314]]
F002......................... Tetrachloroethylene, methylene chloride,
trichloroethylene, 1,1,1-
trichloroethane, 1,1,2-trichloroethane,
chlorobenzene, 1,1,2-trichloro-1,2,2-
trifluoroethane, ortho-dichlorobenzene,
trichlorofluoromethane.
F003......................... N.A., xylene, acetone, ethyl acetate,
ethyl benzene, ethyl ether, methyl
isobutyl ketone, n-butyl alcohol,
cyclohexane, methanol.
F005......................... Toluene, methyl ethyl ketone, carbon
disulfide, isobutanol, pyridine, 2-
ethoxyethanol, benzene, 2-nitropropane.
F039......................... All constituents for which treatment
standards are specified for multi-source
leachate (wastewaters and
nonwastewaters) under 40 CFR 268.43,
Table CCW.
K009......................... Chloroform, formaldehyde, methylene
chloride, methyl chloride, paraldehyde,
formic acid.
K010......................... Chloroform, formaldehyde, methylene
chloride, methyl chloride, paraldehyde,
formic acid, chloroacetaldehyde.
U001......................... Acetaldehyde.
U002......................... Acetone.
U028......................... Bis (2-ethyl hexyl) phthalate.
U031......................... n-Butyl alcohol.
U069......................... Dibutyl phthalate.
U088......................... Di-ethyl phthalate.
U107......................... Di-n-octyl phthalate.
U112......................... Ethyl acetate.
U115......................... Ethylene oxide.
U117......................... Ethane, 1,1'-oxybis-(I).
U122......................... Formaldehyde.
U140......................... Isobutyl alcohol.
U147......................... Maleic anhydride.
U154......................... Methanol.
U159......................... Methyl ethyl ketone.
U161......................... Methyl isobutyl ketone.
U213......................... Tetrahydrofuran.
U220......................... Toluene.
U226......................... 1,1,1-Trichloroethane (methyl
chloroform).
U239......................... Xylene.
U359......................... Ethylene glycol monoethyl ether.
D001......................... Ignitability.
D002......................... Corrosivity.
D003......................... Reactivity.
D007......................... Chromium.
D008......................... Lead.
D018......................... Benzene.
D022......................... Chloroform.
------------------------------------------------------------------------
B. How much waste did Eastman Chemical propose to delist?
Specifically, in its petition, Eastman requested that EPA grant
exclusions for 1,000 cubic yards per calendar year of RKI fly ash; 750
cubic yards per calendar year of RKI bottom ash; and 643,000 cubic
yards (500,000 million gallons) of RKI scrubber water blowdown waste
resulting from the operations of the rotary kiln incinerator at its
facility.
C. How did Eastman Chemical sample and analyze the waste data in this
petition?
To support its petition, Eastman submitted:
1. Analytical results of the toxicity characteristic leaching
procedure and total constituent analysis for volatile and semivolatile
organics, pesticides, herbicides, dioxins/furans, PCBs and metals for
eight samples for the RKI fly ash and RKI bottom ash, and RKI scrubber
water blowdown;
2. Analytical results of the total constituent analysis for
volatile and semivolatile organics, pesticides, herbicides, dioxins/
furans, PCBs and metals for eight samples for the RKI scrubber water
blowdown;
3. Analytical results from multiple pH leaching of metals and;
4. The comparison of the results to the maximum allowable TCLP
delisting levels found in Tables 4, 5, and 6.
5. Description of the operations and waste received of the RKI.
Table 4--Analytical Results and Maximum Allowable Delisting Concentrations of the RKI Bottom Ash \1\
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Maximum
Maximum total Maximum TCLP allowable TCLP
Constituent (mg/kg) (mg/l) delisting level
(mg/L)
----------------------------------------------------------------------------------------------------------------
Antimony................................................... 16 0.062 0.801
Acetone.................................................... 0.194 0.772 33.8
Arsenic.................................................... 8.8 0.029 0.126
Acetaldehyde............................................... 1.37 < 0.0100 5.35
Acenaphthylene............................................. 3.5 0.014 31.9
Anthracene................................................. 1.6 <0.0100 77.9
Acenaphthene............................................... 0.721 0.014 31.9
Barium..................................................... 370 0.7 100
Benzene.................................................... < 0.170 0.0048 0.231
Bis(2-ethylhexyl)phthalate................................. 0.23 0.017 103.0
[[Page 72315]]
Benzo(a) anthracene........................................ 0.763 < 0.0100 0.211
Benzo(a) pyrene............................................ 0.519 < 0.0100 79.1
Benzo(b) flouranthene...................................... 0.343 < 0.0100 673
Bromomethane............................................... 0.057 < 0.0100 0.0526
n-Butyl alcohol............................................ 4.5 < 0.0100 174
Cadmium.................................................... 1.5 0.002 0.274
Chromium................................................... 14 0.02 5.0
Cobalt..................................................... 31 0.023 0.643
Copper..................................................... 29 0.048 73.8
Chloroform................................................. 0.0024 0.0047 0.241
Chrysene................................................... 0.545 < 0.0100 211
Chloromethane.............................................. 0.034 < 0.0100 18.2
Cyanide.................................................... 0.195 0.125 9.25
4,4-DDT.................................................... 0.0032 < 0.0100 0.0103
Di-n-butyl phthalate....................................... < 0.010 0.005 73.9
Dieldrin................................................... 0.0013 < 0.0100 2.78
Ethylbenzene............................................... 0.0086 0.00855 32.6
Fluorene................................................... 2.24 0.031 14.7
Formaldehyde............................................... 4.6 0.23 347
Fluoranthrene.............................................. 1.22 < 0.0100 7.39
Isobutanol................................................. 1.9 1.88 521
Lead....................................................... 7.1 0.016 1.95
Mercury.................................................... < 0.017 < 0.0002 0.2
Methyl Isobutyl ketone..................................... 0.0035 0.0048 139
2-Methylnaphathalene....................................... 0.501 0.012 2.18
Methylene Chloride......................................... 0.072 0.131 0.237
Naphthalene................................................ < 0.022 < 0.0100 0.0983
Nickel..................................................... 44,000 52 54.1
Phenanthrene............................................... 6.48 0.039 14.7
Pyrene..................................................... 2.67 < 0.0100 13.4
Selenium................................................... 15 0.074 1.0
Silver..................................................... 0.027 < 0.0020 5.0
Tetrachlorodibenzo-p-dioxin................................ 0.31E-06 < 5.92E-08 7.46 E-06
(TCDD) 2,3,7,8-............................................ mg/kg total
Thallium................................................... 3.7 0.017 0.110
Tin........................................................ 3.9 < 0.0100 22.5
Toluene.................................................... 0.015 0.0066 45.4
Vanadium................................................... 7.1 0.11 10.4
Xylenes.................................................... 0.049 0.0486 28.7
Zinc....................................................... 550 8.5 600
----------------------------------------------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent found in any one sample. These levels
do not necessarily represent the specific levels found in one sample.
< Denotes that the constituent was below the detection limit.
Table 5--Analytical Results and Maximum Allowable Delisting Concentrations of the RKI Fly Ash \1\
----------------------------------------------------------------------------------------------------------------
Maximum
Maximum total Maximum TCLP allowable TCLP
Constituent (mg/kg) (mg/l) delisting level
(mg/L)
----------------------------------------------------------------------------------------------------------------
Antimony................................................... 25 0.18 0.433
Acetone.................................................... 0.177 0.959 2070
Arsenic.................................................... 18 0.045 0.418
Acetaldehyde............................................... 255 < 0.001 0.6264
Barium..................................................... 110 1.4 100
Bis(2-ethylhexyl)phthalate................................. 0.157 0.006 0.0522
Cadmium.................................................... 2.9 0.011 0.362
Chromium................................................... 5.9 0.015 5.0
Cobalt..................................................... 86 0.1 0.852
Copper..................................................... 100 0.52 97.1
Chloroform................................................. 0.002 0.0044 0.319
Chloromethane.............................................. 0.0285 0.0018 24.1
Cyanide.................................................... 0.17 < 0.001 0.0154
Delta BHC.................................................. 0.0031 < 0.001 3
1,2-Dichlorobenzene........................................ < 0.5 0.0027 37
1,3-Dichlorobenzene........................................ < 0.5 0.0023 37
[[Page 72316]]
Formaldehyde............................................... 5.44 0.272 461
Lead....................................................... 12 0.021 2.45
Methanol................................................... 12.2 < 0.001 0.6743
Methyl isobutanol ketone................................... 0.004 0.0048 184
Methylene Chloride......................................... 0.047 0.137 0.315
Nickel..................................................... 110,000 47 53.8
Nitrobenzene............................................... < 0.5 0.011 1.15
Selenium................................................... 25 0.082 1.0
Silver..................................................... 2.4 < 0.001 5.0
Thallium................................................... 6.7 0.019 0.146
Tin........................................................ 7.8 < 0.001 22.5
Toluene.................................................... 0.002 0.037 60.1
Vanadium................................................... 6.2 < 0.001 14.36
Zinc....................................................... 4200 < 0.001 11.3
Tetrachlorodibenzo-p-dioxin................................ ............... 2.8 E-06mg/kg 8.39 E-05
(TCDD) 2,3,7,8-............................................ mg/kg total
----------------------------------------------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent found in any one sample. These levels
do not necessarily represent the specific levels found in one sample.
< Denotes that the constituent was below the detection limit.
Table 6--Analytical Results and Maximum Allowable Delisting
Concentrations of the RKI Scrubber Water Blowdown \1\
------------------------------------------------------------------------
Maximum
Maximum TCLP allowable TCLP
Constituent (mg/l) delisting level
(mg/l)
------------------------------------------------------------------------
Antimony............................ 0.041 0.0568
Arsenic............................. 0.013 0.112
Barium.............................. 0.61 11.6
Bis (2-ethylhexyl)phthalate......... 0.009 0.0522
Chromium............................ 0.019 10.3
Cobalt.............................. 0.012 0.318
Copper.............................. 0.052 22.1
Chloroform.......................... 0.001 0.0163
Chloromethane....................... 0.0021 1.48
Cyanide............................. 0.0048 0.752
Di-n-butylphthalate................. 0.001 25.6
Lead................................ 0.019 2.57
Methanol............................ 0.42 70.6
Nickel.............................. 0.50 5.74
Silver.............................. 0.002 1.71
Thallium............................ 0.011 0.0179
Tin................................. 0.022 22.5
Vanadium............................ 0.006 4.88
Zinc................................ 16 77.7
------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent
found in any one sample. These levels do not necessarily represent the
specific levels found in one sample.
< Denotes that the constituent was below the detection limit.
IV. Public Comments Received on the Proposed Exclusion
A. Who submitted comments on the proposed rule?
The EPA received public comments on the September 24, 2010,
proposed rule from two interested parties, the Environmental Technology
Council (ETC), and Heritage Environmental. Heritage Environmental
submitted comments objecting to the absence of the full administrative
record not appearing electronically on the regulations.gov site on
October 28, 2010. ETC submitted three rounds of comments dated October
28, 2010, February 7, 2011, and March 7, 2011. The comments and
responses are addressed below. Some of the ETC October 28, 2010
comments requested documents that were not contained in the electronic
docket. The actual records were sent to the commenter for verification
purposes and no further comment is warranted.
B. What comments were submitted on the Eastman Delisting Petition?
Comment 1. The administrative record does not contain the company's
waste sampling plan, waste analysis plan or analytical test results.
The commenter cannot determine such basic information as the number and
representative nature of the waste
[[Page 72317]]
samples. The Federal Register notice ambiguously states that Eastman
submitted analytical results ``for eight samples for the RKI fly ash
and RKI bottom ash, and RKI scrubber water blowdown.'' 75 FR at 58319.
Response 1. The electronic docket for this rule only contained the
proposed rule and associated materials. The administrative record for
this rule contains the petition including the sampling and analysis
plan and results. Requests for items not found online in the electronic
docket can be requested from the Regional office as described in the
notice. These documents were provided to the commenter in an electronic
format on January 7, 2011, after a request for information was made.
Comment 2. A commenter cannot determine from this general
description whether the petition is supported by a total of only eight
sample results, or whether EPA Region 6 meant eight samples for each
type of waste material, or how many samples of each type of waste were
collected. In other words, commenters cannot even determine whether the
minimum number of four samples of each type of waste was collected as
provided in EPA's Delisting Guidance. There is no information on how
the samples were collected, what wastes were incinerated prior to
sampling, whether the samples were representative of wastes processed
in the unit, and why EPA Region 6 believes the analytical results
submitted with the petition adequately support the delisting. In
addition, commenters cannot ascertain basic information on the
analytical testing that was conducted, such as detection limits and the
quality assurance/quality control procedures followed by the testing
laboratory. We cannot even determine whether the analysis was conducted
by Eastman or a certified third-party laboratory. The commenter cannot
effectively comment on the delisting without this necessary information
and an adequate explanation by EPA of the basis for this administrative
action.
Response 2. The administrative record for this petition does
include the information the commenter wanted to verify. Those documents
were not included in the electronic docket because electronic copies
were not available at the time of proposal. Requests for items not
found online in the electronic docket could have been requested from
the Regional office as described in the notice.
Comment 3. Surprisingly, the record also does not contain the DRAS
modeling results or any report on the model inputs, analysis, or
conclusions, other than the summaries for constituents in the Federal
Register tables. Most of the description of the DRAS analysis in the
Federal Register notice is boilerplate that EPA includes in every
delisting notice, and very little information or analysis is presented
regarding the subject wastes.
Response 3. The DRAS results are not available electronically for
this docket. The administrative record for the rule contains hard
copies of each DRAS run and the results. Requests for items not found
online in the electronic docket can be requested from the Regional
office as described in the notice.
Comment 4. From the limited information gleaned from the Federal
Register notices, the commenter must also raise a number of substantive
concerns about the delisting petition. It appears that only total and
TCLP analyses were conducted on the subject wastes. As EPA is aware,
the TCLP was intended to simulate the highly acidic conditions in an
active municipal landfill with decomposing organic wastes, and yet it
appears that the subject wastes would be disposed in an on-site
industrial landfill. No information is provided on the pH conditions of
the industrial landfill. The leachability of hazardous constituents can
be highly dependent on pH. If the pH in the landfill receiving the
waste is not acidic, the leaching of the delisted waste may not perform
as predicted by the TCLP. For this reason, EPA's Delisting Guidance
provides for testing of the waste under a range of pH conditions. It
does not appear that this guidance was followed, and EPA has provided
no explanation for public comment on why the subject waste was not
tested under multiple pH conditions. In most of the delisting actions
by other EPA regions of which the commenter is aware, multiple pH
testing was required and we cannot determine, and therefore cannot
comment on, whether and why such testing was not required for this
delisting petition.
Response 4. Multiple pH testing was conducted on the materials,
since the multiple pH test is not a recognized test method or test
protocol, while mentioned in guidance and performed by most
petitioners, EPA Region 6 has never published the data gathered from
these results. In all delistings, only TCLP and totals data are
reported. Requests for items not found online in the electronic docket
can be requested from the Regional office as described in the notice.
Comment 5. In addition, Eastman apparently petitioned to exclude
waste streams that bear a limited subset of RCRA Hazardous Waste Codes
(5 F-codes, 2 K-codes, and 12 U-codes). The correct identification of
these waste codes is critical because EPA then used the basis for
listing these waste codes to select a relatively short list of
hazardous constituents for analysis and delisting levels. 75 FR at
58318. In our experience, it seems highly improbable that these are the
only codes associated with incinerator operations at a large, complex
chemical facility. Indeed, the Federal Register notice does disclose
that the incinerator is RCRA-permitted for ``a variety of D-, F-, U-,
K-, and P-codes.'' 75 FR at 58317. Apparently many of these coded
wastes were not considered for purposes of the petition. Given the
nature of incinerator operations, there is no explanation for how ash
and scrubber water covered by the petition would not also contain these
additional waste codes. Indeed, there is literally no information in
the administrative record for public comment on why the limited set of
waste codes was selected for the petition, and how EPA will assure that
only incinerator ash and scrubber water bearing only the 19 selected
codes will be managed as delisted wastes.
Response 5. The Eastman Permit limits the types of wastes that are
treated in its rotary kiln incinerator to those addressed in the
delisting petition. The operating permit for the rotary kiln
incinerator restricts and limits the acceptance of wastes which carry
only these 19 codes. Those 19 waste codes were considered the focus of
the delisting. Wastes with codes not listed in the Delisting Petition
are still subject to hazardous waste regulation and are not covered by
the delisting exclusion.
Comment 6. Moreover, the Federal Register notice states that
``there are some production plants that are not owned by Eastman but
are located on the facility,'' and these unidentified plants also send
hazardous wastes to the incinerator. 75 FR at 58317. There is no
information in the record that identifies these facilities, including
the nature of their production activities, raw materials used, and
wastes generated. Hazardous wastes are also accepted for processing in
the incinerator ``from other off-site Eastman facilities.'' Id. Again,
no information is provided in the administrative record that identifies
these facilities or describes their processes, raw materials, or
generated wastes, other than the broad assertion in the Federal
Register that the wastes are ``similar'' to those generated by Eastman.
Id. Since the full and accurate description of the hazardous wastes
processed in the incinerator is critical to
[[Page 72318]]
the proper selection of hazardous constituents for testing and
delisting analysis, this bare-bones description and lack of supporting
data and information in the administrative record cannot sustain a
delisting action.
Response 6. The Eastman RCRA Permit allows the facility to accept
wastes from other Eastman facilities and treat in the rotary kiln
incinerator. The Permit limits the types of wastes that are treated in
its rotary kiln incinerator to those addressed in the delisting
petition. The operating permit for the rotary kiln incinerator
restricts and limits the acceptance of wastes which carry only these 19
codes. Those 19 waste codes were considered the focus of the delisting.
Wastes with codes not listed in the Delisting Petition are still
subject to hazardous waste regulation and are not covered by the
delisting exclusion.
Comment 7. The DRAS model was apparently run for only 49 hazardous
constituents, a surprisingly small number. Under RCRA section 3001(f),
EPA must consider not only the constituents for which the subject
wastes were listed, but also additional constituents that may cause the
waste to be hazardous. Under EPA's Delisting Guidance, the Agency
usually requires that a delisting petitioner submit analytical results
and undertake DRAS modeling for literally hundreds more hazardous
constituents. Again, it somewhat defies credulity that incinerator ash
and scrubber water from a major, complex chemical plant would contain
such a small list of only 49 hazardous constituents. Lacking any
analytical data or other information in the administrative record,
however, ETC cannot effectively comment on this critical issue. In
fact, ETC cannot comment on the DRAS modeling in any substantive
respect because the record contains inadequate information.
Response 7. The EPA provided the administrative record and its
supporting documents to the commenter. No additional comments were
received regarding the DRAS analysis of the waste streams. Generally,
in all delistings, the DRAS model is run for chemicals which are the
basis for the waste codes petitioned for in the delisting and any
additional waste codes detected in the waste. For Eastman specifically,
there were 19 waste codes evaluated. These waste codes represented more
than 200 chemical constituents. In its analysis of the data, EPA only
found that 49 of the chemical constituents were detected in the
analysis of the three Eastman waste streams. These 49 waste codes were
evaluated in the DRAS model.
Comment 8. We also must question why this delisting is being
considered for incinerator ash and scrubber water that would
effectively override the RCRA land disposal treatment standards for the
subject wastes. Eastman has not petitioned to delist hazardous wastes
which do not meet the listing criteria as generated. There is
apparently no dispute that the waste materials processed in the
incinerator are hazardous wastes.
With respect to those wastes, EPA has already made the
determination based on lengthy and thorough LDR rulemakings that
combustion or comparable treatment to the specified treatment levels is
required to minimize short-term and long-term threats to human health
and the environment. In addition, EPA has already determined that
disposal of the treated wastes in a RCRA-permitted landfill that meets
minimum technology requirements (double synthetic liner, groundwater
monitoring, etc.) is necessary for adequate public health and
environmental protection. EPA Region 6 has provided no justification in
the record for overriding these national determinations, other than the
conclusory and unsupported assertion in the Federal Register notice
that the delisting levels will be adequate for such protections. Since
the petitioner already processes the hazardous wastes in a RCRA-
permitted incinerator and disposes of the residuals in an on-site RCRA-
permitted landfill, we can see no justification for the potential
lessening of public health and environmental protection from the
proposed delisting action. The ETC is also concerned that EPA Region
6's approval of this delisting would contravene Congress's land
disposal restrictions and treatment requirements in the RCRA statute.
Likewise, after careful review of the administrative record for the
Eastman Chemical delisting petition, it is clear that the incinerator
ash and scrubber water blowdown derived from the incineration of
numerous F-, K- and U-listed hazardous wastes are not eligible for
delisting, and that such an action would also violate the RCRA
treatment requirements and land disposal prohibitions.
We begin with basic principles--all seemingly ignored in the
proposed delistings. A waste is eligible for delisting only if that
waste as generated at a particular facility does not meet any of the
criteria under which the waste was listed as a hazardous waste. In
addition, the waste may not contain any other Appendix VIII
constituents that would cause the waste to be hazardous. RCRA Sec.
3001(f) and 40 CFR 260.22.
Likewise, the incinerator residues from the Eastman facility are
derived from the incineration of numerous waste streams that are F001,
F002, F003, F005, F039, K009, K010, U001, U002, U031, U069, U107, U112,
U117, U140, U147, U161, U213 and U359 hazardous wastes. By operation of
the derived-from rule, the Eastman incinerator residues are these same
F-, K- and U-listed hazardous wastes. The legal issue raised by the
Eastman Chemical delisting is whether the original F-, K- and U-listed
hazardous wastes would meet the applicable treatment requirements prior
to land disposal if the proposed delisting of the incineration
residuals were granted.
However, EPA Region 6 has proposed to delist the incinerator
residues and allow land disposal at constituent levels that are
significantly higher than the required treatment standards. There is no
exception from the land disposal prohibitions for inadequately treated
residues; in fact, allowing such an exception would obviously
eviscerate the treatment requirements. The original F-, K- and U-listed
hazardous wastes cannot be land disposed if the incinerator ash does
not meet the applicable treatment standards, and a delisting petition
cannot be used to evade this statutory requirement. For this reason,
the concentration levels in the incineration residues would have to be
lower than applicable treatment standards for a delisting to be
possible.
The following are examples of F039 treatment levels compared to
Eastman delisting levels (all concentrations in mg/l TCLP): Barium 21.0
vs. 100 delisted fly ash; Cadmium 0.11 vs. 0.362 delisted fly ash;
Chromium 0.60 vs. 5.0 delisted bottom ash and fly ash; Lead 0.75 vs.
2.45 delisted fly ash; Nickel 11.0 vs. 54.1 delisted bottom ash; Silver
0.14 vs. 5.0 delisted fly ash and bottom ash.
Response 8. The Delisting Program and the LDR program serve
different purposes and because they serve different purposes, different
standards of compliance apply. As the commenter states ``A waste is
eligible for delisting only if that waste as generated at a particular
facility does not meet any of the criteria under which the waste was
listed as a hazardous waste. In addition, the waste may not contain any
other Appendix VIII constituents that would cause the waste to be
hazardous. RCRA Sec. 3001(f) and 40 CFR 260.22.''
The derived-from rule states that any solid waste generated from
the treatment, storage, or disposal of a listed hazardous waste,
including any sludge, spill residue, ash, emission control dust, or
leachate, remains a hazardous waste
[[Page 72319]]
unless and until delisted. (Sec. 261.3(c)(2)(i)).
EPA's regulations establish two ways of identifying solid wastes as
hazardous under RCRA. A waste may be considered hazardous if it
exhibits certain hazardous properties (``characteristics'') or if it is
included on a specific list of wastes EPA has determined are hazardous
(``listing'' a waste as hazardous) because we found them to pose
substantial present or potential hazards to human health or the
environment. EPA's regulations in the Code of Federal Regulations (40
CFR) define four hazardous waste characteristic properties:
ignitability, corrosivity, reactivity, or toxicity (see 40 CFR 261.21-
261.24).
In order to list wastes EPA conducts a more specific assessment of
a particular waste or category of wastes. The Agency will ``list'' them
if they meet criteria set out in 40 CFR 261.11. As described in Sec.
261.11, EPA may list a waste as hazardous if the waste: Exhibits any of
the characteristics, i.e., ignitability, corrosivity, reactivity, or
toxicity (Sec. 261.11(a)(1)); is ``acutely'' hazardous (e.g., if it is
fatal to humans or animals at low doses, Sec. 261.11(a)(2)); or it
contains any of the toxic constituents listed in 40 CFR part 261,
Appendix VIII and, after consideration of various factors described in
the regulation, is capable of posing a ``substantial present or
potential hazard to human health or the environment when improperly
treated, stored, transported, or disposed of, or otherwise managed''
(Sec. 261.11(a)(3)).
EPA placed a substance on the list of hazardous constituents in
Appendix VIII if scientific studies have shown the substance has toxic
effects on humans or other life forms.
Generally, listing of wastes are not driven by threshold limits
except in the case of the toxicity characteristic (TC) determination.
Several of the limits cited by the commenter are the TC limit for the
constituents stated. If the waste is characteristic, then it can't be
delisted. The delisting limit is bound by the TC limit.
In 1984, Congress created EPA's Land Disposal Restrictions (LDR)
program. The LDR program ensures that toxic constituents present in
hazardous waste are properly treated before hazardous waste is land
disposed. Since then, the LDR team has developed mandatory technology-
based treatment standards that must be met before hazardous waste is
placed in a landfill. These standards help minimize short and long-term
threats to human health and the environment, which directly benefits
local communities where hazardous waste landfills are located. The LDR
Program does not determine if a waste is hazardous. It regulates how
hazardous wastes are to be managed at the time of disposal.
We do believe that the concentrations specified as delisting levels
do minimize short term and long term threats to human health and the
environment. Whereas, some LDR treatment standards are based on the
best demonstrated technology, the delisting exit levels are risk based
standards. We have not stated that Eastman is not subject to the LDR
standards because the waste was not delisted at the point of
generation, Eastman may submit a variance to the treatment standards as
described in Sec. 268.42(b) or 268.44 in order to ensure compliance
with the LDR standards, but the Delisting decision may still be made.
However, wastes destined for disposal in Subtitle C landfills are
subject to the LDR limits. Therefore, wastes when delisted must comply
with all applicable Subtitle D landfill requirements.
Comment 9. The ETC also notes that the DRAS software used by EPA
for these delistings was apparently a new Version 3, and that the
changes from Version 2 may not previously have been subject to public
notice and opportunity for comment. We are in the process of
determining all the changes incorporated into Version 3 and the effect
of those changes on delisting levels and the protection of human health
and the environment. The ETC requests that EPA Region 6 clarify the
changes made in Version 3, the effect of those changes on the pending
delistings, and the agency's rationales for those changes to allow for
effective public comment.
Response 9. As discussed in the Eastman Direct Final Rule and
Proposal, the changes made between version 2 of DRAS and Version 3 of
DRAS are described in 73 FR 28777. In July 2007, U.S. EPA prepared an
update of the DRAS by releasing version 3.0. The update addressed a
number of issues with version 2 and improved the fate and transport
modeling. To estimate the downgradient concentrations of waste leachate
constituents released into groundwater, the DRAS utilizes conservative
dilution attenuation factors (DAFs) taken from Monte-Carlo applications
of U.S. EPA's Composite Model for Leachate Migration with
Transformation Products (CMTP). DRAS 3.0 includes all new DAFs from new
CMTP modeling runs. The new modeling takes advantage of: Updated
saturated flow and transport modules; a new surface impoundment module
and database; model corrections for unrealistic scenarios (like water
tables modeled above the ground surface); new isotherms for metals; and
a revised recharge and infiltration database. As a result, many of the
DAFs used in previous versions of DRAS have changed. Further affecting
the groundwater calculation, the relationships for determining scaling
factors used to scale the DAFs to account for very small waste streams
have been updated to reflect the new database information on landfills
and surface impoundments and were also corrected for a metric
conversion of cubic meters to cubic yards. The new scaling factors are
generally higher than those of previous versions of DRAS, resulting in
higher estimated dilution and attenuation at lower waste volumes for
both landfills and surface impoundments. The new metals DAFs, based on
MINTEQA2 isotherms, can vary as a function of the landfill leachate
concentration. This means that the effective DAF (including a scaling
factor adjustment, if necessary) for an input concentration may differ
significantly with the effective DAF that corresponds to the allowable
leachate concentration. DRAS 3.0 now displays the DAFs in both the
forward calculated risk tables and the tables of maximum allowable
concentrations so that the difference is evident to the user. The
isotherms that vary by leachate concentration are represented in DRAS
by a look-up table with leachate concentrations paired with DAFs. In
the event that an actual concentration input to DRAS lies between two
values in the table, or an allowable receptor concentration lies
between two calculated receptor concentrations from the table, DRAS 3.0
will linearly and proportionally extrapolate between the two values to
determine the corresponding exposure or allowable leachate
concentration. EPA changed the calculation for particle emissions
caused by vehicles driving over the waste at the landfill to provide a
more realistic estimate. The estimate depends upon the number of trips
per day landfill vehicles make back and forth over the waste. In
previous versions of DRAS, this value was conservatively set at a 100
trips per day, corresponding with an extremely high annual waste
volume. In DRAS 3.0, a minimum number of trips per day was
conservatively assumed from the Subtitle D landfill survey (7.4 trips
per day at the 95th percentile of values reported). The number of trips
per day specific to the actual waste volume is then added to the
minimum to reflect
[[Page 72320]]
the impact of very large waste streams. This will considerably reduce
the particle emission estimate for wastes generated at all but the
largest annual volumes. EPA added a conversion from English to metric
tons to the calculation of particle emissions from waste unloading,
resulting in a decrease of roughly 10% over previous versions of DRAS.
We also made a unit-conversion factor correction to part of the air
volatile pathway which will reduce the impact to the receptor. An error
in the back-calculation for fish ingestion pathway was corrected to
reflect the difference between freely dissolved and total water column
waste constituent concentrations. For the estimation of risk and
hazard, we made a number of updates to the forward and back
calculations. Previous versions of DRAS assumed that only 12.5% of
particles are absorbed by the receptor's respiratory system. This is no
longer necessary as toxicity reference values for inhalation currently
recommended by U.S. EPA relate risk or hazard directly to exposure
concentration. DRAS 3.0 does not include the 12.5% reduction. This
change significantly increases estimated risks due to particle
inhalation and lowers corresponding allowable concentrations. DRAS
Version 3.0.47 has a reformulated back calculation of the allowable
leachate concentrations from exposure due to contaminants volatilized
during household water use to match the forward calculation of risk. In
previous versions of DRAS, the forward calculation summed the risks
from exposure to all three evaluated household compartments (the
shower, the bathroom, and the whole house) while the back calculation
based the maximum allowable level on the single most conservative
compartment. The DRAS 3.0 maximum allowable leachate concentrations are
now based on the combined impact of all three compartments. The house
exposure was also expanded to a 900 minute (15 hour) daily exposure to
reflect non-working residents who have an overall 16 hour in-house
exposure (the other 1 hour is spent in the shower and bathroom). EPA
resolved the inconsistencies with the way DRAS chooses limiting
pathways for specific waste constituents in DRAS 3.0. EPA checked all
toxicity reference values in DRAS and updated where necessary.
Approximately 180 changes were made to the toxicity reference values in
DRAS based on data in IRIS, PPRTV, HEAST, NCEA, CalEPA and other
sources. Some route-to-route extrapolations of oral toxicity data to
inhalation exposure have been returned to DRAS 3.0 if consistent with
Agency policy. See U.S. EPA 2006 for full accounting of this
methodology. The same reference also includes discussions of toxicity
reference choices where the multiple values were available or where the
toxicity reference values were specific to particular species of
constituents.
Comment 10. On January 18, 2011, President Barack Obama signed
Executive Order 13563 to ``improve regulation and regulatory review''
in his Administration. In the section on public participation in the
regulatory process, President Obama stated that ``each agency shall
afford the public a meaningful opportunity to comment through the
internet on any proposed regulation, with a comment period that should
generally be at least 60 days.''
Response 10. The Eastman Direct Final Rule published in the Federal
Register on September 24, 2010, several months before President Obama's
Executive Order was issued. The EPA Region 6 will abide by the order
issued on January 18, 2011 in future delisting actions.
Comment 11. Obviously, our concern is that these supporting
materials may have been generated subsequent to the proposed delisting,
and therefore could not have been relied on by EPA in developing the
proposed rule. We request that EPA Region 6 clarify whether the DRAS
output files included in the administrative record were the output
files relied on for the proposed rule, how this could be possible given
the dates of the output files, and whether other output files existed
prior to proposal of the delisting that were not included in the
administrative record.
Response 11. The DRAS outputs for the Eastman petition were
generated December 10, 2009 and January 6, 2010 both prior to the
issuance of the direct final rules.
Comment 12. An initial review of the Eastman Chemical delisting
petition raises numerous questions. The petition reveals that several
dioxin/furan congeners were present in the samples of incinerator ash,
with analytical results for selected hexa-, hepta-, and octa- dioxins
and -furans in the fly and bottom ashes listed in Tables 1-5 of the
Petition. However, only one delisting value was provided in the tables
for octachlorodibenzofuran (OCDF) in the bottom ash and fly ash at a
level of 10,000,000 mg/kg. This value is equal to 1000 percent OCDF,
which of course is impossible. This approach to dioxins/furans is
totally inadequate for a hazardous waste incinerator, where products of
incomplete combustion are a concern that must be addressed. Similarly,
the delisting petition ignores PCBs, even though PCBs can form as PICs
in the combustion process.
In addition, the delisting levels for numerous metals, volatiles,
semi-volatiles and pesticides listed in the tables are very high, some
on the order of 1,000,000,000 mg/kg (e.g., tin and xylenes for the
bottom ash and methanol for the fly ash). Again, these levels are
impossible, and indicate serious errors that undermine the technical
veracity of the delisting petition.
Response 12. The DRAS is a mathematical model which calculates the
delisting level based on health based numbers and a delisting
attenuation factor. The delisting attenuation factor is not bound, so
it can sometimes produce impractical values for the delisting level,
because of a chemicals affinity not to leach or degrade. Those values
are not proposed as exit values because the technical review of the
petition highlighted the infeasibility of these situations.
Comment 13. Some metals are present in the incinerator ash at very
close to the delisting levels. For example, antimony was present in the
fly ash at a level of 0.18 mg/l TCLP versus the delisting level of 1.08
mg/l TCLP; arsenic at a level of 0.045 versus 0.049; and nickel at 47
versus 148. For this reason, sampling and analysis to demonstrate
compliance with the delisting levels should be fairly stringent, yet we
do not see any information in the administrative record on EPA's
sampling requirements.
Response 13. The sampling plan is part of the administrative record
and the requirements for sampling frequency are explained in the
verification requirements of the exclusion language. A waste is
eligible for delisting only if that waste as generated at a particular
facility does not meet any of the criteria under which the waste was
listed as a hazardous waste. In addition, the waste may not contain any
other Appendix VIII constituents that would cause the waste to be
hazardous. RCRA Sec. 3001(f) and 40 CFR 260.22. Concentrations below a
delisting level are eligible for the exclusion. We do monitor and
require sampling to ensure that the concentrations of the waste to be
delisted are measured and below the delisting level.
Comment 14. As a further concern, most of the analysis for the
Eastman delisting petition was apparently performed by a laboratory
owned and operated by Eastman. There is no explanation for why in this
case EPA Region 6 did not require use of an independent certified
analytical
[[Page 72321]]
laboratory, as must be done in most other delisting cases.
Response 14. The petitioner must use a certified analytical
laboratory to supply data for the delisting petition. The laboratory
used by Eastman is a certified laboratory and the data validation
package was reviewed and accepted.
Comment 15. The Eastman incinerator should be considered a
commercial incineration facility because Huntsman Chemical and Air
Liquide ship significant quantities of hazardous waste to the Eastman
incinerator. Yet very little data is presented to describe the Huntsman
and Air Liquide waste and no information is provided on waste codes.
Because of the wider range and variability of waste streams processed,
the sampling and analytical concerns described above are magnified and
require a reasonable response from EPA.
Response 15. The wastes generated from Huntsman Chemical and Air
Liquide are covered by the Texas Eastman Operating Permit and are
acceptable waste streams for incineration in the rotary kiln
incinerator. Both facilities are on-site at Eastman Chemical and are
processes which were previously part of the Eastman Chemical Process
Train but for business reasons were sold to the aforementioned
companies. There is no additional variability of the waste stream
created because the wastes are generated by processes owned by Huntsman
and Air Liquide are present in the waste stream.
V. Statutory and Executive Order Reviews
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this rule is not of general applicability
and therefore is not a regulatory action subject to review by the
Office of Management and Budget (OMB). This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a
particular facility only. Because this rule is of particular
applicability relating to a particular facility, it is not subject to
the regulatory flexibility provisions of the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because
this rule will affect only a particular facility, it will not
significantly or uniquely affect small governments, as specified in
section 203 of UMRA. Because this rule will affect only a particular
facility, this proposed rule does not have federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132, ``Federalism,'' (64
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply
to this rule. Similarly, because this rule will affect only a
particular facility, this proposed rule does not have tribal
implications, as specified in Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments'' (65 FR 67249, November 9,
2000). Thus, Executive Order 13175 does not apply to this rule. This
rule also is not subject to Executive Order 13045, ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant as
defined in Executive Order 12866, and because the Agency does not have
reason to believe the environmental health or safety risks addressed by
this action present a disproportionate risk to children. The basis for
this belief is that the Agency used the DRAS program, which considers
health and safety risks to infants and children, to calculate the
maximum allowable concentrations for this rule. This rule is not
subject to Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866. This rule does not involve technical
standards; thus, the requirements of section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do
not apply. As required by section 3 of Executive Order 12988, ``Civil
Justice Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule,
EPA has taken the necessary steps to eliminate drafting errors and
ambiguity, minimize potential litigation, and provide a clear legal
standard for affected conduct. The Congressional Review Act, 5 U.S.C.
801 et seq., as added by the Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides that before a rule may take
effect, the agency promulgating the rule must submit a rule report
which includes a copy of the rule to each House of the Congress and to
the Comptroller General of the United States. Section 804 exempts from
section 801 the following types of rules (1) Rules of particular
applicability; (2) rules relating to agency management or personnel;
and (3) rules of agency organization, procedure, or practice that do
not substantially affect the rights or obligations of non-agency
parties, 5 U.S.C. 804(3). EPA is not required to submit a rule report
regarding this action under section 801 because this is a rule of
particular applicability.
Lists of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).
Dated: November 9, 2011.
Carl E. Edlund,
Director, Multimedia Planning and Permitting Division.
For the reasons set out in the preamble, 40 CFR part 261 is amended
as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
0
1. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
PART 261--[AMENDED]
0
2. In Tables 1, 2 and 3 of Appendix IX to Part 261 add the following
waste stream in alphabetical order by facility to read as follows:
Appendix IX to Part 261--Waste Excluded Under Sec. Sec. 260.20 and
260.22
[[Page 72322]]
Table 1--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Eastman Chemical Company-Texas Longview, TX........... RKI bottom ash (EPA Hazardous Waste Numbers
Operations. F001, F002, F003, F005, F039, K009, K010, U001,
U002, U031, U069, U107, U112, U117, U140, U147,
U161, U213, and U359.) generated at a maximum
rate of 1,000 cubic yards per calendar year
after November 23, 2011 and disposed in
Subtitle D Landfill.
RKI fly ash EPA Hazardous Waste Number F001,
F002, F003, F005, F039, K009, K010, U001, U002,
U031, U069, U107, U112, U117, U140, U147, U161,
U213, and U359 generated at a maximum rate of
750 cubic yards per calendar year after
November 23, 2011 and disposed in Subtitle D
Landfill.
RKI scrubber water blowdown (EPA Hazardous Waste
Numbers D001, D002, D003, D007, D008, D018,
D022, F001, F002, F003, F005, F039, K009, K010,
U001, U002, U031, U069, U107, U112, U117, U140,
U147, U161, U213, and U359 generated at a
maximum rate of 643,000 cubic yards (500,000
million gallons) per calendar year after
November 23, 2011 and treated and discharged
from a Wastewater Treatment Plant.
For the exclusion to be valid, Eastman must
implement a verification testing program for
each of the waste streams that meets the
following Paragraphs:
(1) Delisting Levels: All concentrations for
those constituents must not exceed the maximum
allowable concentrations in mg/l specified in
this paragraph.
(A) RKI Bottom Ash. Leachable Concentrations (mg/
l): Antimony--0.801; Acetone--33.8; Arsenic--
0.126; Acetaldehyde--5.35; Acenaphthylene--
31.9; Anthracene--77.9; Acenaphthene--31.9;
Barium--100; Benzene--0.231; Bis(2-
ethylhexyl)phthalate--103; Benzo(a) anthracene--
0.211; Benzo(a) pyrene--79.1; Benzo(b)
flouranthene--673; Bromomethane--0.0526; n-
Butyl Alcohol--174; Cadmium--0.274; Chromium--
5.0; Cobalt--0.643; Copper--73.8; Chloroform--
0.241; Chrysene--211; chloromethane--18.2;
Cyanide--9.25; 4,4- DDT--0.0103; Di-n-butyl
phthalate- 73.9; Dieldrin--2.78; Ethylbenzene--
32.6; Fluorene--14.7; Formaldehyde--347;
Fluoranthrene--7.39; Isobutanol--521; Lead--
1.95; Mercury--0.2; Methy Isobutyl ketone--139;
2-Methylnaphathalene--2.18; Methylene Chloride--
0.237; Naphthalene--0.0983; Nickel--54.1;
Phenanthrene--14.7; Pyrene--13.4; Selenium--
1.0; Silver--5.0; Thallium--0.110; Tin--22.5;
Toluene--45.4; Vanadium--10.4; Xylene--28.7;
Zinc--600.
Total Concentrations (mg/kg) Tetrachlorodibenzo-
p-dioxin (TCDD) 2,3,7,8-7.46 E-06 mg/kg.
(B) RKI Fly Ash. Leachable Concentrations (mg/
l): Antimony--0.111; Acetone--533; Arsenic--
0.178; Barium--36.9; Bis(2-
ethylhexyl)phthalate--6.15; Chromium--2.32;
Copper--26.5; Ehtylbenzene--11.1; Methylene
Chloride--0.0809; Naphthalene--0.0355; Nickel--
13.8; Phenanthrene--2.72; Toluene--15.5;
Trichloroethane--11900; Trichloroethylene--
0.0794; Vanadium--1.00; Zinc--202.
Total Concentrations (mg/kg) Tetrachlorodibenzo-
p-dioxin (TCDD) 2,3,7,8-4.30 E-05 mg/kg.
(C) RKI Scrubber Water Blowdown. TCLP
Concentrations (mg/l): Antimony--0.0568;
Arsenic--0.112; Barium--11.6; Bis(2-
ethylhexyl)phthalate--0.0522; Chromium--5.0;
Cobalt--0.318, Copper--22.1; Chloroform--
0.0163, Chloromethane--1.48; Cyanide--0.752; Di-
n-butylphthalate--25.6; Lead--2.57; Methanol--
70.6; Nickel--5.74; Silver--1.71; Thallium--
0.0179; Tin--22.5; Vanadium--4.88; Zinc--77.7.
(2) Waste Holding and Handling:
(A) Waste classification as non-hazardous can
not begin until compliance with the limits set
in paragraph (1) for RKI bottom ash, RKI fly
ash, and RKI scrubber water blowdown has
occurred for four consecutive quarterly
sampling events.
(B) If constituent levels in any annual sample
and retest sample taken by Eastman exceed any
of the delisting levels set in paragraph (1)
for the RKI bottom ash, RKI fly ash, and RKI
scrubber water blowdown, Eastman must do the
following:
(i) Notify EPA in accordance with paragraph (6)
and
(ii) Manage and dispose the RKI bottom ash, RKI
fly ash, and RKI scrubber water blowdown as
hazardous waste generated under Subtitle C of
RCRA.
(3) Testing Requirements:
Upon this exclusion becoming final, Eastman must
perform analytical testing by sampling and
analyzing the RKI bottom ash, RKI fly ash, and
RKI scrubber water blowdown as follows:
(A) Initial Verification Testing:
(i) Collect four representative composite
samples of each of the RKI bottom ash, RKI fly
ash, and RKI scrubber water blowdown at
quarterly intervals after EPA grants the final
exclusion. The first round of composite samples
of each waste stream may be taken at any time
after EPA grants the final approval. Sampling
must be performed in accordance with the
sampling plan approved by EPA in support of the
exclusion.
(ii) Analyze the samples for all constituents
listed in paragraph (1). Any composite sample
taken that exceeds the delisting levels listed
in paragraph (1) indicates that the RKI bottom
ash, RKI fly ash, and RKI scrubber water
blowdown must continue to be disposed as
hazardous waste in accordance with the
applicable hazardous waste requirements until
such time that four consecutive quarterly
samples indicate compliance with delisting
levels listed in paragraph (1).
[[Page 72323]]
(iii) Within sixty (60) days after taking its
last quarterly sample, Eastman will report its
analytical test data to EPA. If levels of
constituents measured in the samples of the RKI
bottom ash, RKI fly ash, and RKI scrubber water
blowdown do not exceed the levels set forth in
paragraph (1) of this exclusion for four
consecutive quarters, Eastman can manage and
dispose the non-hazardous RKI bottom ash, RKI
fly ash, and RKI scrubber water blowdown
according to all applicable solid waste
regulations.
(B) Annual Testing:
(i) If Eastman completes the quarterly testing
specified in paragraph (3) above and no sample
contains a constituent at a level which exceeds
the limits set forth in paragraph (1), Eastman
must begin annual testing as follows: Eastman
must test a representative composite sample of
the RKI bottom ash, RKI fly ash, and RKI
scrubber water blowdown for all constituents
listed in paragraph (1) at least once per
calendar year. If any measured constituent
concentration exceeds the delisting levels set
forth in paragraph (1), Eastman must collect an
additional representative composite sample
within 10 days of being made aware of the
exceedence and test it expeditiously for the
constituent(s) which exceeded delisting levels
in the original annual sample.
(ii) The samples for the annual testing shall be
a representative composite sample according to
appropriate methods. As applicable to the
method-defined parameters of concern, analyses
requiring the use of SW-846 methods
incorporated by reference in 40 CFR 260.11 must
be used without substitution. As applicable,
the SW-846 methods might include Methods 0010,
0011, 0020, 0023A, 0030, 0031, 0040, 0050,
0051, 0060, 0061, 1010A, 1020B,1110A, 1310B,
1311, 1312, 1320, 1330A, 9010C, 9012B, 9040C,
9045D, 9060A, 9070A (uses EPA Method 1664, Rev.
A), 9071B, and 9095B. Methods must meet
Performance Based Measurement System Criteria
in which the Data Quality Objectives are to
demonstrate that samples of the Eastman RKI
bottom ash, RKI fly ash, and RKI scrubber water
blowdown are representative for all
constituents listed in paragraph (1).
(iii) The samples for the annual testing taken
for the second and subsequent annual testing
events shall be taken within the same calendar
month as the first annual sample taken.
(iv) The annual testing report shall include the
total amount of delisted waste in cubic yards
disposed during the calendar year.
(4) Changes in Operating Conditions: If Eastman
significantly changes the process described in
its petition or starts any processes that
generate(s) the waste that may or could affect
the composition or type of waste generated (by
illustration, but not limitation, changes in
equipment or operating conditions of the
treatment process), it must notify EPA in
writing and it may no longer handle the wastes
generated from the new process as non-hazardous
until the wastes meet the delisting levels set
in paragraph (1) and it has received written
approval to do so from EPA.
Eastman must submit a modification to the
petition complete with full sampling and
analysis for circumstances where the waste
volume changes and/or additional waste codes
are added to the waste stream.
(5) Data Submittals:
Eastman must submit the information described
below. If Eastman fails to submit the required
data within the specified time or maintain the
required records on-site for the specified
time, EPA, at its discretion, will consider
this sufficient basis to reopen the exclusion
as described in paragraph(6). Eastman must:
(A) Submit the data obtained through paragraph 3
to the Chief, Corrective Action and Waste
Minimization Section, Multimedia Planning and
Permitting Division, U.S. Environmental
Protection Agency Region 6, 1445 Ross Ave.,
Dallas, Texas 75202, within the time specified.
All supporting data can be submitted on CD-ROM
or comparable electronic media.
(B) Compile records of analytical data from
paragraph (3), summarized, and maintained on-
site for a minimum of five years.
(C) Furnish these records and data when either
EPA or the State of Texas requests them for
inspection.
(D) Send along with all data a signed copy of
the following certification statement, to
attest to the truth and accuracy of the data
submitted:
``Under civil and criminal penalty of law for
the making or submission of false or fraudulent
statements or representations (pursuant to the
applicable provisions of the Federal Code,
which include, but may not be limited to, 18
U.S.C. 1001 and 42 U.S.C. 6928), I certify that
the information contained in or accompanying
this document is true, accurate and complete.
As to the (those) identified section(s) of this
document for which I cannot personally verify
its (their) truth and accuracy, I certify as
the company official having supervisory
responsibility for the persons who, acting
under my direct instructions, made the
verification that this information is true,
accurate and complete.
If any of this information is determined by EPA
in its sole discretion to be false, inaccurate
or incomplete, and upon conveyance of this fact
to the company, I recognize and agree that this
exclusion of waste will be void as if it never
had effect or to the extent directed by EPA and
that the company will be liable for any actions
taken in contravention of the company's RCRA
and CERCLA obligations premised upon the
company's reliance on the void exclusion.''
(6) Reopener.
[[Page 72324]]
(A) If, anytime after disposal of the delisted
waste Eastman possesses or is otherwise made
aware of any environmental data (including but
not limited to leachate data or ground water
monitoring data) or any other data relevant to
the delisted waste indicating that any
constituent identified for the delisting
verification testing is at level higher than
the delisting level allowed by the Division
Director in granting the petition, then the
facility must report the data, in writing, to
the Division Director within 10 days of first
possessing or being made aware of that data.
(B) If either the annual testing (and retest, if
applicable) of the waste does not meet the
delisting requirements in paragraph 1, Eastman
must report the data, in writing, to the
Division Director within 10 days of first
possessing or being made aware of that data.
(C) If Eastman fails to submit the information
described in paragraphs (5), (6)(A) or (6)(B)
or if any other information is received from
any source, the Division Director will make a
preliminary determination as to whether the
reported information requires EPA action to
protect human health and/or the environment.
Further action may include suspending, or
revoking the exclusion, or other appropriate
response necessary to protect human health and
the environment.
(D) If the Division Director determines that the
reported information requires action by EPA,
the Division Director will notify the facility
in writing of the actions the Division Director
believes are necessary to protect human health
and the environment. The notice shall include a
statement of the proposed action and a
statement providing the facility with an
opportunity to present information as to why
the proposed EPA action is not necessary. The
facility shall have 10 days from receipt of the
Division Director's notice to present such
information.
(E) Following the receipt of information from
the facility described in paragraph (6)(D) or
(if no information is presented under paragraph
(6)(D)) the initial receipt of information
described in paragraphs (5), (6)(A) or (6)(B),
the Division Director will issue a final
written determination describing EPA actions
that are necessary to protect human health and/
or the environment. Any required action
described in the Division Director's
determination shall become effective
immediately, unless the Division Director
provides otherwise.
(7) Notification Requirements: Eastman must do
the following before transporting the delisted
waste. Failure to provide this notification
will result in a violation of the delisting
petition and a possible revocation of the
decision.
(A) Provide a one-time written notification to
any state Regulatory Agency to which or through
which it will transport the delisted waste
described above for disposal, 60 days before
beginning such activities.
(B) For onsite disposal a notice should be
submitted to the State to notify the State that
disposal of the delisted materials have begun.
(C) Update one-time written notification, if it
ships the delisted waste into a different
disposal facility.
(D) Failure to provide this notification will
result in a violation of the delisting variance
and a possible revocation of the decision.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Table 2--Waste Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Eastman Chemical Company--Texas Longview, TX........... RKI Bottom Ash. (EPA Hazardous Waste Number
Operations. F001, F002, F003, F005, F039, K009, K010, U001,
U002, U031, U069, U107, U112, U117, U140, U147,
U161, U213, and U359) generated at a maximum
rate of 1,000 cubic yards per calendar year
after November 23, 2011 and disposed in
Subtitle D Landfill.
RKI Fly Ash. (EPA Hazardous Waste Number F001,
F002, F003, F005, F039, K009, K010, U001, U002,
U031, U069, U107, U112, U117, U140, U147, U161,
U213, and U359) generated at a maximum rate of
2,000 cubic yards per calendar year after
November 23, 2011 and disposed in Subtitle D
Landfill.
RKI Scrubber Water Blowdown. (EPA Hazardous
Numbers D001, D002, D003, D007, D008, D018,
D022, F001, F002, F003, F005, F039, K009, K010,
U001, U002, U031, U069, U107, U112, U117, U140,
U147, U161, U213, and U359) generated at a
maximum rate of 643,000 cubic yards (500,000
million gallons) per calendar year after
November 23, 2011 and treated and discharged
from a Wastewater Treatment Plant.
Eastman must implement the testing program in
Table 1. Wastes Excluded from Non-Specific
Sources for the petition to be valid.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[[Page 72325]]
Table 3--Waste Excluded From Commercial Chemical Products, Off-Specification Species, Container Residues, and
Soil Residues Thereof
----------------------------------------------------------------------------------------------------------------
Facility Address Waste description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Eastman Chemical Company-Texas Longview, TX........... RKI Bottom Ash. (EPA Hazardous Waste Number
Operations. F001, F002, F003, F005, F039, K009, K010, U001,
U002, U031, U069, U107, U112, U117, U140, U147,
U161, U213, and U359) generated at a maximum
rate of 1,000 cubic yards per calendar year
after November 23, 2011 and disposed in
Subtitle D Landfill.
RKI Fly Ash. (EPA Hazardous Waste Number F001,
F002, F003, F005, F039, K009, K010, U001, U002,
U031, U069, U107, U112, U117, U140, U147, U161,
U213, and U359) generated at a maximum rate of
2,000 cubic yards per calendar year after
November 23, 2011 and disposed in Subtitle D
Landfill.
RKI Scrubber Water Blowdown. (EPA Hazardous
Numbers D001, D002, D003, D007, D008, D018,
D022, F001, F002, F003, F005, F039, K009, K010,
U001, U002, U031, U069, U107, U112, U117, U140,
U147, U161, U213, and U359) generated at a
maximum rate of 643,000 cubic yards (500,000
million gallons) per calendar year after
November 23, 2011 and treated and discharged
from a Wastewater Treatment Plant.
Eastman must implement the testing program in
Table 1. Wastes Excluded from Non-Specific
Wastes for the petition to be valid.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2011-30147 Filed 11-22-11; 8:45 am]
BILLING CODE 6560-50-P