Solid wastes: Hazardous waste identification and listing— Exclusions,

[Federal Register: October 4, 2004 (Volume 69, Number 191)]

[Proposed Rules]

[Page 59156-59165]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr04oc04-24]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW FRL-7823-9]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

SUMMARY: EPA is proposing to grant a petition submitted by Bayer Polymers (Bayer) to exclude (or delist) a certain solid waste generated by its Baytown, Texas, facility from the lists of hazardous wastes.

EPA used the Delisting Risk Assessment Software (DRAS) in the evaluation of the impact of the petitioned waste on human health and the environment.

EPA bases its proposed decision to grant the petition on an evaluation of waste-specific information provided by the petitioner. This proposed decision, if finalized, would exclude the petitioned waste from the requirements of hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA).

If finalized, EPA would conclude that Bayer's petitioned waste is nonhazardous with respect to the original listing criteria and that the generation of K027, K104, K111, and K112 treated effluent from the facility's waste water treatment plant will not be hazardous at the point of generation because of the adequately reduces the likelihood of migration of constituents from this waste. EPA would also conclude that Bayer's process minimizes short-term and long-term threats from the petitioned waste to human health and the environment.

DATES: EPA will accept comments until November 3, 2004. EPA will stamp comments received after the close of the comment period as late. These late comments may not be considered in formulating a final decision. Your requests for a hearing must reach EPA by October 19, 2004. The request must contain the information prescribed in 40 CFR 260.20(d).

ADDRESSES: Please send three copies of your comments. You should send two copies to the Chief, Corrective Action and Waste Minimization Section (6PD-C), Multimedia Planning and Permitting Division, U. S. Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, Texas 75202. You should send a third copy to the Texas Commission on Environmental Quality, P.O. Box 13087, Austin, TX 78712. Identify your comments at the top with this regulatory docket number: [R6-TXDEL-FY04- Bayer]. You may submit your comments electronically to Michelle Peace at peace.michelle@epa.gov.

You should address requests for a hearing to Ben Banipal, Chief, Corrective Action and Waste Minimization Section (6PD-C), Multimedia Planning and Permitting Division, U.S. Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, Texas 75202.

FOR FURTHER TECHNICAL INFORMATION CONTACT: Michelle Peace (214) 665- 7430.

SUPPLEMENTARY INFORMATION:

The information in this section is organized as follows:

1. Overview Information

   1. What action is EPA proposing?

   1. Why is EPA proposing to approve this delisting?

   3. How will Bayer manage the waste, if it is delisted?

   4. When would the proposed delisting exclusion be finalized?

   5. How would this action affect states? II. Background

   1. What is the history of the delisting program?

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

   3. What factors must EPA consider in deciding whether to grant a delisting petition? III. EPA's Evaluation of the Waste Information and Data

   1. What wastes did Bayer petition EPA to delist?

   2. Who is Bayer and what process do they use to generate the petition waste?

   3. What information did Bayer submit to support this petition?

   4. What were the results of Bayer's analysis?

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

   6. What did EPA conclude about Bayer's analysis?

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

   8. What is EPA's evaluation of this delisting petition? IV. Next Steps

   1. With what conditions must the petitioner comply?

   2. What happens, if Bayer violates the terms and conditions? V. Public Comments

   1. How may I as an interested party submit comments?

   2. How may I review the docket or obtain copies of the proposed exclusion? VI. Regulatory Impact VII. Regulatory Flexibility Act VIII. Paperwork Reduction Act IX. Unfunded Mandates Reform Act X. Executive Order 13045 XI. Executive Order 13084 XII. National Technology Transfer and Advancements Act XIII. Executive Order 13132 Federalism

1. Overview Information

   1. What Action Is EPA Proposing?

      EPA is proposing to grant the delisting petition submitted by Bayer to have its Outfall 007 Treated Effluent (K027, K104, K111, and K112 listed hazardous waste) excluded, or delisted, from the definition of a hazardous waste.

   2. Why Is EPA Proposing To Approve This Delisting?

      Bayer's petition requests a delisting for the treated effluent derived from the treatment of hazardous waste water listed as K027, K104, K111, and K112 and non-hazardous waste water identified as brine header waste water. Bayer does not believe that the petitioned waste meets the criteria for which EPA listed it. Bayer 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 initial delisting

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      determination, EPA evaluated the petitioned waste against the listing criteria and factors cited in Sec. 261.11(a)(2) and (a)(3). Based on this review, EPA agrees with the petitioner that the waste is nonhazardous with respect to the original listing criteria. (If EPA had found, based on this review, that the waste remained hazardous based on the factors for which the waste was originally listed, EPA would have proposed to deny the petition.) EPA evaluated the waste with respect to other factors or criteria to assess whether there is a reasonable basis to believe that such additional factors could cause the waste to be hazardous. EPA considered whether the waste is acutely toxic, the concentration of the constituents in the waste, their tendency to migrate and to bioaccumulate, their persistence in the environment once released from the waste, plausible and specific types of management of the petitioned waste, the quantities of waste generated, and waste variability. EPA believes that the petitioned waste does not meet the listing criteria and thus should not be a listed waste. EPA's proposed decision to delist waste from the Bayer facility is based on the information submitted in support of this rule, including descriptions of wastes and analytical data from the Baytown, Texas facility.

   3. How Will Bayer Manage the Waste, if it Is Delisted?

      Bayer currently discharges the treated effluent as permitted by its Texas Pollutant Discharge Elimination System (TPDES) permit. If the delisting exclusion is finalized, Bayer intends to dispose of the petitioned waste (i.e., treated effluent) in the same manner. This delisting does not relieve Bayer of its responsibility to comply with and conduct all tests required by its TPDES permit. The waste would be delisted in the Outfall Tank prior to its discharge from Outfall 007.

   4. When Would the Proposed Delisting Exclusion Be Finalized?

      RCRA section 3001(f) specifically requires EPA to provide notice and an opportunity for comment before granting or denying a final exclusion. Thus, EPA will not grant the exclusion unless and until it addresses all timely public comments (including those at public hearings, if any) on this proposal.

      RCRA section 3010(b)(1) at 42 USCA 6930(b)(1), allows rules to become effective in less than six months after EPA addresses public comments when the regulated facility does not need the six-month period to come into compliance. That is the case here, because this rule, if finalized, would reduce the existing requirements for persons generating hazardous wastes.

      EPA believes that this exclusion should be effective immediately upon final publication because a six-month deadline is not necessary to achieve the purpose of section 3010(b), and a later effective date would impose unnecessary hardship and expense on this petitioner. These reasons also provide good cause for making this rule effective immediately, upon final publication, under the Administrative Procedure Act, 5 U.S.C. 553(d).

   5. How Would This Action Affect the States?

      Because EPA is issuing this exclusion under the Federal RCRA delisting program, only States subject to Federal RCRA delisting provisions would be affected. This would exclude States who have received authorization from EPA to make their own delisting decisions.

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

2. Background

   1. What Is the History of the Delisting Program?

      EPA published an amended list of hazardous wastes from nonspecific and specific sources on January 16, 1981, as part of its final and interim final regulations implementing section 3001 of RCRA. EPA has amended this list several times and published it in Sec. Sec. 261.31 and 261.32. EPA lists these wastes as hazardous because: (1) They typically and frequently exhibit one or more of the characteristics of hazardous wastes identified in Subpart C of Part 261 (that is, ignitability, corrosivity, reactivity, and toxicity) or (2) they meet the criteria for listing contained in Sec. 261.11(a)(2) or (a)(3).

      Individual waste streams may vary, however, depending on raw materials, industrial processes, and other factors. Thus, while a waste described in these regulations generally is hazardous, a specific waste from an individual facility meeting the listing description may not be hazardous.

      For this reason, Sec. Sec. 260.20 and 260.22 provide an exclusion procedure, called delisting, which allows persons to prove that EPA should not regulate a specific waste from a particular generating facility as a hazardous waste.

   2. What Is a Delisting Petition, and What Does it Require of a Petitioner?

      A delisting petition is a request from a facility to EPA or an authorized State to exclude wastes from the list of hazardous wastes. The facility petitions EPA because it does not believe the wastes should be hazardous under RCRA regulations.

      In a delisting petition, the petitioner must show that wastes generated at a particular facility do not meet any of the criteria for which the waste was listed. The criteria for which EPA lists a waste are in Part 261 and further explained in the background documents for the listed waste.

      In addition, under Sec. 260.22, a petitioner must prove that the waste does not exhibit any of the hazardous waste characteristics (that is, ignitability, reactivity, corrosivity, and toxicity) and present sufficient information for EPA to decide whether factors other than those for which the waste was listed warrant retaining it as a hazardous waste. See Part 261 and the background documents for the listed waste.

      Generators remain obligated under RCRA to confirm whether their waste remains nonhazardous based on the hazardous waste characteristics even if EPA has ``delisted'' the waste.

   3. What Factors Must EPA Consider in Deciding Whether To Grant a Delisting Petition?

      Besides considering the criteria in Sec. 260.22(a) and section 3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for the listed wastes, EPA must consider any factors (including additional constituents) other than those for which EPA listed the waste, if a reasonable basis exists that these additional factors could cause the waste to be hazardous.

      EPA must also consider as hazardous waste mixtures containing listed hazardous wastes and wastes derived from treating, storing, or disposing of listed hazardous waste. See Sec. 261.3(a)(2)(iii) and (iv) and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules, respectively. These wastes are also eligible for exclusion and remain hazardous wastes until

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      excluded. See 66 FR 27266 (May 16, 2001).

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

   1. What Waste Did Bayer Petition EPA To Delist?

      On June 25, 2003, Bayer petitioned EPA to exclude from the lists of hazardous waste contained in Sec. Sec. 261.31 and 261.32, the treated effluent that is discharged pursuant to Bayer's TPDES permit. The discharge originates at Outfall 007 and is piped to the discharge location described as the ``diffuser near Hog Island into the Houston Ship Channel.'' The waste stream is generated from the Bayer facility located in Baytown, Texas. The waste (EPA Hazardous Waste Nos. K027, K104, K111, and K112) is effluent, which has been treated at the facility's waste water treatment plant and is ultimately discharged to Outfall 007 in accordance with the facility's TPDES permit. Specifically, in its petition, Bayer requested that EPA grant an exclusion for 18,071,150 cubic yards (5.745 billion gallons) per calendar year of treated effluent resulting from the treatment of waste waters from the manufacturing processes at its facility.

   2. Who Is Bayer and What Process Do They Use to Generate the Petition Waste?

      Bayer produces plastics, coatings, polyurethanes, and industrial chemicals. Bayer is the first facility in the United States to employ Tower Biology, an onsite waste water treatment plant (the plant) process that uses bacteria to treat waste above ground to protect ground water resources. The waste waters treated at the plant are generated by the various manufacturing operations at the Baytown facility. Influent waste waters enter the plant via the ``normal waste water header'' or the ``brine waste water header.'' The waste water entering the plant via the normal waste water header is placed in the primary clarifier. From the primary clarifier, the waste water is placed in a tank that feeds the waste water to a denitrification reactor prior to treatment in the biological oxidation towers. Following biological treatment, the waste water is run through a secondary clarifier. Waste water from the clarifier is sent to an activated carbon absorption system. Upon exiting the carbon absorption system, the waste water is fed to a series of filters. After filtration, the treated waste water is placed in an outfall tank for subsequent discharge under Bayer's TPDES discharge permit.

      Influent waste waters that enter the plant via the ``brine waste water header'' are placed in dedicated brine tanks and a brine carbon absorption system. After filtration, the brine waste water is commingled in the outfall tank with the treated normal waste water prior to being discharged in accordance with the Bayer TPDES discharge permit.

      Treatment of the waste waters, which result from the manufacturing process generates the effluent that is classified as K027, K104, K111, and K112 listed hazardous wastes pursuant to 40 CFR Sec. 261.31. The 40 CFR Part 261 Appendix VII hazardous constituents which are the basis for listing K027, K104, K111, and K112 hazardous wastes are: toluene diisocyanate, aniline, benzene, diphenylamine, nitrobenzene, phenylenediamine, 2,4-dinitrotoluene, 2,4-toluenediamine, o-toluidine, and p-toluidine.

   3. What Information Did Bayer Submit To Support This Petition?

      To support its petition, Bayer submitted:

      (1) Results of the total constituent analysis for volatile and semivolatile organics, pesticides, herbicides, dioxins/furans, PCBs and metals for six samples.

      (2) Descriptions of the waste water treatment process and effluent.

   4. What Were the Results of Bayer's Analyses?

      EPA believes that the descriptions of Bayer's waste water treatment process, in addition to the analytical data submitted in support of the petition show that the treated effluent is nonhazardous. Analytical data from Bayer's treated effluent samples were used in the Delisting Risk Assessment Software. The data summaries for detected constituents are presented in Table 1. EPA has reviewed the sampling procedures used by Bayer and has determined they satisfy EPA's criteria for collecting representative samples of the variations in constituent concentrations in the treated effluent. The data submitted in support of the petition show that constituents in Bayer's waste is presently below health-based risk levels used in the delisting decision-making. EPA believes that Bayer has successfully demonstrated that the treated effluent is nonhazardous.

      Table 1.--Maximum Total Constituent Concentrations of the Treated Effluent and Corresponding Delisting Limits \1\

      Waste stream total Maximum allowable Chemical name

      concentration (mg/ concentration (mg/ kg)

      kg)

      Phenylenediamine, m-........ 5.00E-02............ 8.79E-01 Bis(2-ethylhexyl)phthalate.. 1.94E-03............ 1.26E+03 Di-n-octyl phthalate........ 2.50E-03............ 4.54E+02 Dinitrotoluene, 2,4-........ 1.50E-03............ 4.51E-03 Diphenylamine............... 1.50E-03............ 1.18E+01 Dioxane, 1,4-............... 1.40E+00............ 1.76E+00 Pyrene...................... 2.00E-03............ 3.90E+01 Fluoranthene................ 2.50E-03............ 2.46E+01 Cyanide..................... 2.84E-02............ 4.60E-01 Aniline..................... 2.56E-03............ 6.80E-01 Tetrachloroethane, 1,1,1,2-. 1.00E-03............ 7.03E-01 Acetone..................... 2.80E+00............ 1.46E+01 Chloroform.................. 1.40E-02............ 7.70E-02 Benzene..................... 3.00E-03............ 5.90E-02 Mercury..................... 6.80E-04............ 3.23E-02 Nickel...................... 9.16E-02............ 1.13E+01 Thallium.................... 5.00E-03............ 3.34E-02 Antimony.................... 7.10E-03............ 8.16E-02 Arsenic..................... 8.20E-03............ 3.85E-01

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      Barium...................... 1.04E-01............ 2.22E+01 Chromium.................... 9.10E-03............ 1.53E+02 Copper...................... 1.02E-01............ 3.62E+03 Vanadium.................... 1.38E-02............ 8.38E+00 Zinc........................ 8.33E-02............ 1.12E+02 Methylene chloride.......... 1.00E-03............ 2.90E-02 Bromodichloromethane........ 2.00E-03............ 7.19E-02 Selenium.................... 9.10E-03............ 2.30E-01 Methyl ethyl ketone......... 1.00E-02............ 8.79E+01 Di-n-butyl phthalate........ 2.08E-03............ 1.49E+02 Toluidine, o-............... 2.00E-03............ 1.71E-02 Acetophenone................ 8.90E-04............ 1.58E+01 Toluidine, p-............... 1.50E-03............ 2.15E-02 Toluene diisocyanate........