[Federal Register Volume 61, Number 123 (Tuesday, June 25, 1996)]
[Proposed Rules]
[Pages 32753-32765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15883]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261

[SW-FRL-5525-2]


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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule and request for comment.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
grant a petition to the Texas Eastman Division of Eastman Chemical 
Company (Texas Eastman) to exclude (or ``delist''), certain solid 
wastes generated at its facility from the lists of hazardous wastes 
contained in 40 CFR 261.24, 261.31, 261.32 and 261.33 (hereinafter all 
sectional references are to 40 CFR unless otherwise indicated). This 
petition was submitted under 40 CFR 260.20, which allows any person to 
petition the Administrator to modify or revoke any provision of 40 CFR 
Parts 260 through 266, 268 and 273, and under 40 CFR 260.22, which 
specifically provides generators the opportunity to petition the 
Administrator to exclude a waste on a ``generator specific'' basis from 
the hazardous waste lists. This proposed decision is based on an 
evaluation of waste-specific information provided by the petitioner. If 
this proposed decision is finalized, the petitioned waste will be 
conditionally excluded from the requirements of hazardous waste 
regulations under the Resource Conservation and Recovery Act (RCRA).

DATES: The EPA is requesting public comments on this proposed decision. 
Comments will be accepted until August 9, 1996. Comments postmarked 
after the close of the comment period will be stamped ``late.''
    Any person may request a hearing on this proposed decision by 
filing a request with Jane N. Saginaw, Regional Administrator, whose 
address appears below, by July 10, 1996. The request must contain the 
information prescribed in 40 CFR 260.20(d).

ADDRESSES: Send three copies of your comments. Two copies should be 
sent to William Gallagher, Delisting Program, Multimedia Planning and 
Permitting Division (6PD-O), U.S. Environmental Protection Agency, 
Region 6, 1445 Ross Avenue, Dallas, Texas 75202. A third copy should be 
sent to the Texas Natural Resource Conservation Commission, 12100 Park 
35 Circle, Austin, Texas 78753. Identify your comments at the top with 
this regulatory docket number: ``F-96-TXDEL-TXEASTMAN.''
    Requests for a hearing should be addressed to the Regional 
Administrator, Region 6, Environmental Protection Agency, 1445 Ross 
Avenue, Dallas, Texas 75202.
    The RCRA regulatory docket for this proposed rule is located at the 
Region 6, Environmental Protection Agency, 1445 Ross Avenue, Dallas, 
Texas 75202 and is available for viewing in the EPA library on the 12th 
floor from 8:30 a.m. to 4:00 p.m., Monday through Friday, excluding 
Federal holidays. Call (214) 665-6444 for appointments. The docket may 
also be viewed at the Texas Natural Resource Conservation Commission, 
12100 Park 35 Circle, Austin, Texas 78753. The public may copy material 
from any regulatory docket at no cost for the first 100 pages, and at 
$0.15 per page for additional copies.

FOR FURTHER INFORMATION, CONTACT: For technical information concerning 
this notice, contact Michelle Peace, Delisting Program (6PD-O), Region 
6, Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 
75202, (214) 665-7430.

[[Page 32754]]

SUPPLEMENTARY INFORMATION:

I. Background

A. Authority

    On January 16, 1981, as part of its final and interim final 
regulations implementing Section 3001 of RCRA, the EPA published an 
amended list of hazardous wastes from non-specific and specific 
sources. This list has been amended several times, and is published in 
Sec. 261.24, Sec. 261.31, Sec. 261.32 and Sec. 261.33. These wastes are 
listed as hazardous because they typically and frequently exhibit one 
or more of the characteristics of hazardous wastes identified in 
Subpart C of Part 261 (i.e., ignitability, corrosivity, reactivity, and 
toxicity) or 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. Therefore, Sec. 260.20 and Sec. 260.22 provide an exclusion 
procedure, allowing persons to demonstrate that a specific waste from a 
particular generating facility should not be regulated as a hazardous 
waste.
    To have their wastes excluded, petitioners must show that wastes 
generated at their facilities do not meet any of the criteria for which 
the wastes were listed. See, Sec. 260.22(a) and the background 
documents for the listed wastes. In addition, the Hazardous and Solid 
Waste Amendments (HSWA) of 1984 require the EPA to consider any factors 
(including additional constituents) other than those for which the 
waste was listed, if there is a reasonable basis to believe that such 
additional factors could cause the waste to be hazardous. Accordingly, 
a petitioner also must demonstrate that the waste does not exhibit any 
of the hazardous waste characteristics (i.e., ignitability, reactivity, 
corrosivity, and toxicity), and must present sufficient information for 
the EPA to determine whether the waste contains any of the other 
identified constituents at hazardous levels. See, Sec. 260.22(a), 42 
U.S.C. 6921(f), and the background documents for the listed wastes. 
Although wastes that are ``delisted'' have been evaluated to decide 
whether they exhibit any of the characteristics of hazardous waste, 
generators remain obligated under RCRA to determine whether their waste 
remains non-hazardous based on the hazardous waste characteristics.
    In addition, residues from the treatment, storage, or disposal of 
listed hazardous wastes and mixtures containing listed hazardous wastes 
are also considered hazardous wastes. See, Secs. 261.3(a)(2)(iv) and 
(c)(2)(I), referred to as the ``mixture'' and ``derived-from'' rules, 
respectively. Such wastes are also eligible for exclusion and remain 
hazardous wastes until excluded. On December 6, 1991, the U.S. Court of 
Appeals for the District of Columbia vacated the ``mixture/derived 
from'' rules and remanded them to the EPA on procedural grounds. See, 
Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). On March 3, 1992, 
EPA reinstated the mixture and derived-from rules, and solicited 
comments on other ways to regulate waste mixtures and residues (57 FR 
7628). On December 21, 1995, the EPA proposed rules related to waste 
mixtures and residues at 60 FR 66344 and invited public comment. These 
references should be consulted for more information regarding mixtures 
and residues.

B. Approach Used to Evaluate This Petition

    Texas Eastman's petition requests a delisting for a listed 
hazardous waste. In making the initial delisting determination, the 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, the EPA 
agreed with the petitioner that the waste is non-hazardous 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 was originally listed, the EPA would have proposed to 
deny the petition.) The EPA then 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, and 
considered the toxicity of the constituents, 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.
    For this delisting determination, the EPA used such information to 
identify plausible exposure routes (i.e., ground water, surface water, 
air) for hazardous constituents present in the petitioned waste. The 
EPA determined that disposal in a Subtitle D landfill is the most 
reasonable, worst-case disposal scenario for Texas Eastman's petitioned 
waste, and that the major exposure route of concern would be ingestion 
of contaminated ground water. Therefore, the EPA is proposing to use a 
particular fate and transport model, the EPA Composite Model for 
Landfills (EPACML), to predict the maximum allowable concentrations of 
hazardous constituents that may be released from the petitioned waste 
after disposal and to determine the potential impact of the disposal of 
Texas Eastman's petitioned waste on human health and the environment. 
Specifically, the EPA used the maximum estimated waste volume and the 
maximum reported extract concentrations as inputs to estimate the 
constituent concentrations in the ground water at a hypothetical 
receptor well downgradient from the disposal site. The calculated 
receptor well concentrations (referred to as compliance-point 
concentrations) were then compared directly to the current health-based 
levels used in delisting decision-making for the hazardous constituents 
of concern.
    The EPA believes that this fate and transport model represents a 
reasonable worst-case scenario for disposal of the petitioned waste in 
a landfill, and that a reasonable worst-case scenario is appropriate 
when evaluating whether a waste should be relieved of the protective 
management constraints of RCRA Subtitle C. The use of a reasonable 
worst-case scenario results in conservative values for the compliance-
point concentrations and ensures that the waste, once removed from 
hazardous waste regulation, will not pose a threat to human health or 
the environment. Because a delisted waste is no longer subject to 
hazardous waste control, the EPA is generally unable to predict and 
does not presently control how a waste will be managed after delisting. 
Therefore, the EPA does not currently consider extensive site-specific 
factors when applying the fate and transport model. The EPA also 
considers the applicability of groundwater monitoring data during the 
evaluation of delisting petitions. The EPA normally requests 
groundwater monitoring data for wastes managed on-site to determine 
whether hazardous constituents have migrated to the underlying 
groundwater. Groundwater monitoring data provides significant 
additional information important to fully characterize the potential 
impact (if any) of the disposal of a petitioned waste on human health 
and the environment. In this case, the EPA determined that the 
groundwater

[[Page 32755]]

monitoring data was applicable to the evaluation of the petitioned 
waste. Texas Eastman's petitioned waste is transported to an on-site 
hazardous waste landfill that has been designed to meet the RCRA 
minimum technology requirements and has groundwater monitoring wells to 
monitor the landfill. The EPA believes that data collected from Texas 
Eastman's groundwater monitoring system provides a clear measure of 
whether the landfill has adversely impacted groundwater quality at the 
Texas Eastman site. The data provided from the groundwater monitoring 
system and the landfill leachate seem to indicate that no adverse 
impact on the groundwater has occurred and that the leachate collected 
from the system is currently below health based limits. The potential 
impact of these wastes on the groundwater will also be predicted 
through the application of the EPACML, fate and transport model. 
Finally, the Hazardous and Solid Waste Amendments of 1984 specifically 
require the EPA to provide notice and an opportunity for comment before 
granting or denying a final exclusion. Thus, a final decision will not 
be made until all timely public comments (including those at public 
hearings, if any) on today's proposal are addressed.

II. Disposition of Delisting Petition

    Eastman Chemical Company--Texas Eastman Division, Longview, Texas, 
75607.

A. Petition for Exclusion

    Eastman Chemical Company --Texas Eastman Division (Texas Eastman), 
located in Longview, Texas is involved in the manufacturing of organic 
chemicals and plastics. Texas Eastman petitioned the EPA for a 
conditional exclusion of approximately 7,000 cubic yards of Fluidized 
Bed Incinerator (FBI) ash generated per calendar year. The FBI ash, 
presently disposed of in an on-site hazardous waste landfill, is 
generated from the incineration of sludges from its wastewater 
treatment plant. The FBI ash is listed for 56 EPA Hazardous Waste 
Numbers due to the ``derived-from'' and mixture rules. The waste is 
listed as D001, D003, D018, D019, D021, D022, D027, D028, D029, D030, 
D032, D033, D034, D035, D036, D038, D039, D040, F001, F003, F005, K009, 
K010, U001, U002, U003, U019, U028, U031, U037, U044, U056, U069, U070, 
U107, U108, U112, U113, U115, U117, U122, U140, U147, U151, U154, U159, 
U161, U169, U190, U196, U211, U213, U226, U239, and U359. The listed 
constituents of concern for these EPA Hazardous Waste Numbers are shown 
in Table 1 (See, Part 261, Appendix VII).

   Table 1.--Hazardous Waste Codes Associated With Wastewater Streams   
------------------------------------------------------------------------
          Waste code                Basis for characteristic/listing    
------------------------------------------------------------------------
D001.........................  Ignitability.                            
D003.........................  Reactivity.                              
D018.........................  Benzene.                                 
D019.........................  Carbon Tetrachloride.                    
D021.........................  Chlorobenzene.                           
D022.........................  Chloroform.                              
D027.........................  1,4-Dichlorobenzene.                     
D028.........................  1,2-Dichloroethane.                      
D029.........................  1,1-Dichloroethylene.                    
D030.........................  2,4-Dinitrotoluene.                      
D032.........................  Hexachlorobenzene.                       
D033.........................  Hexachlorobutadiene.                     
D034.........................  Hexachloroethane.                        
D035.........................  Methyl ethyl ketone.                     
D036.........................  Nitrobenzene.                            
D038.........................  Pyridine.                                
D039.........................  Tetrachloroethylene.                     
D040.........................  Trichloroethylene                        
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    
                                trichlorofluoroethane, ortho-           
                                dichlorobenzene, trichlorofluoromethane.
F005.........................  Toluene, methyl ethyl ketone, carbon     
                                disulfide, isobutanol, pyridine, 2-     
                                ethoxyethanol, benzene, 2-nitropropane. 
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.                                 
U003.........................  Acetonitrile.                            
U019.........................  Benzene.                                 
U028.........................  Benzenetrichloride.                      
U031.........................  n-Butyl alcohol.                         
U037.........................  Chlorobenzene.                           
U044.........................  Chloroform.                              
U056.........................  Cyclohexane.                             
U069.........................  Dibutyl phthlate.                        
U070.........................  o-Dichlorobenzene.                       
U107.........................  Di-n-octyl-phthlate.                     
U108.........................  1,4-Diethyleneoxide.                     
U112.........................  Ethyl acetate.                           
U113.........................  Ethyl acrylate.                          
U115.........................  Ethylene oxide.                          
U117.........................  Ethyl ether.                             

[[Page 32756]]

                                                                        
U122.........................  Formaldehyde.                            
U140.........................  Isobutyl alcohol.                        
U147.........................  Maleic anhydride.                        
U151.........................  Mercury.                                 
U154.........................  Methanol.                                
U159.........................  Methyl ethyl ketone.                     
U161.........................  Methyl isobutyl ketone.                  
U169.........................  Nitrobenzene.                            
U190.........................  Phthalic anhydride.                      
U196.........................  Pyridine.                                
U211.........................  Carbon Tetrachloride.                    
U213.........................  Tetrahydrofuran                          
U226.........................  1,1,1-Trichloroethane (methyl            
                                chloroform).                            
U239.........................  Xylene.                                  
U359.........................  Ethylene glycol monoethyl ether.         
------------------------------------------------------------------------



    Texas Eastman petitioned the EPA to exclude this annual volume of 
FBI ash because it does not believe that the waste meets the criteria 
for which it was listed. Texas Eastman also believes that the waste 
does not contain any other constituents that would render it hazardous. 
Review of this petition included consideration of the original listing 
criteria, as well as the additional factors required by the HSWA of 
1984. See, Section 222 of HSWA, 42 U.S.C. Sec. 6921(f), and 40 CFR 
Sec. 260.22(d)(2)-(4). Today's proposal to grant this petition for 
delisting is the result of the EPA's evaluation of Texas Eastman's 
petition.

B. Background

    On December 29, 1994, Texas Eastman petitioned the EPA to exclude, 
from the lists of hazardous wastes contained in 40 CFR Sec. 261.31 and 
Sec. 261.32, an annual volume of incinerator ash generated from 
incineration of sludge from its wastewater treatment plant. 
Specifically, in its petition, Texas Eastman requested that the EPA 
grant a standard exclusion for 7,000 cubic yards of incinerator ash 
generated per calendar year.
     In support of its petition, Texas Eastman submitted: (1) 
descriptions of its wastewater treatment processes and the incineration 
activities associated with the petitioned waste; (2) results from total 
constituent analyses for the Toxicity Characteristic (TC) metals listed 
in Sec. 261.24 (i.e., the TC metals) antimony, arsenic, barium, 
beryllium, cadmium, chromium, cobalt, copper, lead, mercury, nickel, 
selenium, silver, thallium, tin, vanadium, and zinc from representative 
samples of the waste; (3) results from the Toxicity Characteristic 
Leaching Procedure (TCLP), (SW-846 Method 1311) for the TC metals 
antimony, arsenic, barium, beryllium, cadmium, chromium, cobalt, 
copper, lead, mercury, nickel, selenium, silver, thallium, tin, 
vanadium, and zinc from representative samples of the waste; (4) 
results from the Multiple Extraction Procedure (MEP), (SW-846 Method 
1330) for antimony, arsenic, barium, beryllium, cadmium, chromium, 
cobalt, copper, lead, mercury, nickel, selenium, silver, thallium, tin, 
vanadium, and zinc from representative samples of the waste; (5) test 
results from the total constituent analyses for dioxins/furans from 
representative samples of the waste; (6) results from total oil and 
grease analyses from representative samples of the waste; (7) test 
results and information regarding the hazardous characteristics of 
ignitability, corrosivity, and reactivity; (8) results from total 
constituent and TCLP analyses for 40 CFR Part 264 Appendix IX volatile 
and semi-volatile organic compounds from representative samples of the 
waste; and (9) results from the Land Disposal Restriction Analysis 
performed on the untreated ash. Texas Eastman also provided total 
constituent analyses and for the biological treatment sludge, scrubber 
water blowdown, influent waste water and waste liquid fuel associated 
with the generation of the FBI ash. To meet the Land Disposal 
Restriction's interim treatment standard for nickel, Texas Eastman had 
to stabilize the nickel in the FBI ash by adding a polymer. Since the 
universal treatment standards were finalized in 1995, and designated 
the TCLP treatment standard for nickel as 5.0 mg/l, Texas Eastman no 
longer has to add the polymer to the ash.
    Texas Eastman is an active organic chemical and plastics 
manufacturing plant. Current facility operations, including wastewater 
treatment, are not significantly different from the operations 
occurring at this facility for the last 10 years. There are two major 
raw materials (propane and ethane) used at the Texas Eastman facility. 
Most of the products from this facility are in similar product 
groupings, therefore the wastewater resulting from the manufacturing of 
these products is fairly well defined. Texas Eastman believes that 
several factors dampen the spatial and temporal variability that may 
occur in the wastewater: (1) the majority of wastewater volume 
generated at the Texas Eastman facility is from low strength sources 
and the high strength sources generated are from a few low volume 
sources; (2) the daily volume of wastewater flow is such that very 
large mass loading is necessary to influence the concentrations of a 
constituent reaching the wastewater treatment plant (WWTP); (3) the 
hydraulic retention time of 17 days within the WWTP is very high as 
well as the corresponding sludge age which minimizes the chance of a 
shock load influencing the resulting feed to the incinerator; (4) the 
collection system for the WWTP is equipped with ``shock'' load sensors 
and a monitoring system which prevent large mass loadings from being 
introduced into the WWTP; (5) the WWTP is equipped with emergency 
storage tanks capable of holding approximately 20 hours of influent; 
and (6) the liquid fuels used as supplemental fuels in the incinerator 
are relatively uniform in characteristics and constituents.
    During the various production processes, wastewaters are generated 
and flow into a centralized collection system. All wastewaters are 
routed to the wastewater treatment plant for treatment, via biological 
degradation, and subsequent discharge into receiving waters. To 
facilitate growth of new microorganisms, a portion of the biological 
mass (i.e., sludge) is removed from the wastewater treatment system. 
The biological sludge is routed to a storage tank and then to the FBI 
for thermal treatment. The FBI is a

[[Page 32757]]

permitted incinerator operated at a temperature of 1550 deg.F. The 
total heat content of all feeds introduced into the FBI, including the 
waste feeds and auxiliary fuels are not permitted to exceed 42 million 
BTU/hr. After incineration, the flue gases are routed through a heat 
exchanger and a venturi scrubber. A mixture of ash solids and scrubber 
water is sent to the ash thickener. This mixture is dewatered by 
passing it through a rotary vacuum filter. After being scraped from the 
filter, the ash drops into a dumpster where it is stored prior to 
disposal. The resulting FBI ash generated annually is the subject of 
Texas Eastman's delisting petition.
    Texas Eastman developed a list of constituents of concern from 
comparing a list of the wastes generated at the plant with the list of 
constituents that appear in 40 CFR Sec. 261, Appendix VIII, as well as 
the following six constituents not found in Appendix VIII: acetone, 
ethylbenzene, isophorone, 4-methyl-2-pentanone, styrene, and total 
xylenes. It was decided due to the availability of test methods and 
process knowledge, that Texas Eastman would analyze its waste for those 
constituents found in 40 CFR Sec. 264, Appendix IX, except for 
pesticides, herbicides, and polychlorinated biphenyls (PCBs).
    The sampling and analysis of the FBI ash took place in April and 
May 1994. The sampling program consisted of two individual test runs 
which together spanned 42 days. During the two test runs, two extreme 
FBI operating conditions (high sludge and high liquids) were 
represented in addition to normal operations. During one worst case 
test condition, biological treatment sludge was fed to the FBI at 
approximately 12,000 pounds per hour (lbs/hr), and waste liquid fuels 
were fed to the FBI at approximately 540 lbs/hr. During the other worst 
case test condition, waste liquid fuels were fed to the FBI at 
approximately the maximum feed rate of 684 lbs/hr and biological 
treatment sludge was fed at approximately 8,000 lbs/hr. Each test 
condition consisted of one run. The tests for extreme conditions (high 
sludge or high liquids) lasted two days due to the limited availability 
to produce sufficient sludge volume for a longer duration test. The 
tests for normal operations lasted five days. The FBI was operated 
continuously at the designated test condition throughout the test 
period. This allowed for the collection of samples of FBI ash during 
each test, yielding a total of 10 sets of FBI ash data from the eight 
tests: 8 from the individual test conditions, 1 duplicate, and 1 from 
the untreated ash. Samples of four streams (the treated and untreated 
FBI ash, biological treatment sludge, and waste liquid fuels) were 
collected at 6-hour intervals during each of the eight tests. With the 
exception of VOA vials collected for volatiles analysis, the 6-hour 
interval samples of each stream collected during each run were 
composited at the Texas Eastman facility and shipped to the analytical 
laboratories. The composite samples were analyzed for the total 
concentrations (i.e., mass of a particular constituent per mass of 
waste) of the eight TCLP metals, antimony, beryllium, cobalt, copper, 
nickel, thallium, tin, vanadium, and zinc, selected volatile and semi-
volatile organic constituents, dioxins/furans, and oil and grease 
content. The samples were also analyzed to determine whether the waste 
exhibited the reactive properties, including analysis for total 
constituent concentrations of cyanide, sulfide, reactive cyanide, and 
reactive sulfide. These samples were also analyzed for TCLP 
concentrations (i.e., mass of a particular constituent per unit volume 
of extract) of the eight TC metals, antimony, beryllium, cobalt, 
copper, nickel, thallium, tin, vanadium, zinc, and selected volatile 
and semi-volatile organic constituents.
    Texas Eastman has also collected samples of the treated and 
untreated ash to maintain compliance with the Land Disposal 
Restrictions. For compliance with LDR, the untreated ash is analyzed 
for total constituents concentrations of a select group of volatile and 
semivolatile organics expected to be present in the ash and the eight 
TCLP metals, nickel and vanadium. LDR leachate results for the treated 
ash were provided in the 1994 petition. Since, treatment of the ash is 
no longer necessary, results from four samples of the untreated ash 
have been provided to support this petition. The four samples were 
collected for four consecutive months from December 1995-March 1996.

C. Agency Analysis

    Texas Eastman used SW-846 Methods 7041, 7060, 7421, 7471, 7740, and 
7841 to quantify the total constituent concentrations of antimony, 
arsenic, lead, mercury, selenium, and thallium; and SW-846 Method 6010 
to quantify total constituent concentrations of barium, beryllium, 
cadmium, chromium, nickel, silver, vanadium, and zinc in the samples of 
FBI ash (treated and untreated), sludge,and liquid fuels. Texas Eastman 
used SW-846 Methods 9010 to quantify the total constituent 
concentrations of cyanide for these samples. Texas Eastman used 9030 to 
quantify the total constituent concentrations of sulfide.
    Using method M-413.2 from the ``Methods for Chemical Analysis of 
Water and Wastes'', EPA-600/4-79-020, March 1983, Texas Eastman 
determined that oil and grease content was not detected in the 
untreated ash.
    Texas Eastman used SW-846 Method 1311 (TCLP)/Method 6010 to 
quantify the leachable concentrations of the eight TC metals, antimony, 
beryllium, copper, cobalt, nickel, vanadium, and zinc in the ash 
samples. SW-846 Method 7471 was used for mercury analyses of the 
extracts from the samples. Texas Eastman used SW-846 Method 1311 /
Method 9010 to quantify leachable cyanide concentrations in the 
samples. The samples taken for the LDR program used SW-846 Method 1311 
(TCLP)/ Method 6010 to quantify the TC metals present in the untreated 
ash. Method 8290 was used to quantify the total concentrations of 
dioxin and furans.
    The analyses for reactive cyanide and reactive sulfide (SW-846 
Methods 7.3.3.2 and 7.3.4.2, respectively) were provided to verify that 
the untreated ash was not characteristic. The ash does not meet the 
definitions of ignitability and corrosivity provided in 40 CFR 
Sec. 261.21 (a)(2) and Sec. 261.22.
    Table 1 presents the maximum total constituent and leachate 
concentrations for the eight TC metals, antimony, beryllium, cyanide, 
nickel, vanadium, and zinc for the composite samples of the petitioned 
waste. Table 1 also presents the maximum reactive cyanide and reactive 
sulfide concentrations.
    The detection limits presented in Table 1 represent the lowest 
concentrations quantifiable by Texas Eastman when using the appropriate 
SW-846 or Agency-approved analytical methods to analyze the untreated 
ash. (Detection limits may vary according to the waste and waste matrix 
being analyzed, i.e., the ``cleanliness waste matrices varies and 
``dirty'' waste matrices may cause interferences, thus raising the 
detection limits).

[[Page 32758]]



  Table 1.--Maximum Total Constituent and Leachate Concentrations (ppm) 
                          \1\ Untreated FBI Ash                         
------------------------------------------------------------------------
                                    Total          Leachate analyses    
    Inorganic constituents       constituent ---------------------------
                                  analyses        TCLP           MEP    
------------------------------------------------------------------------
Antimony......................       12.5         0.0217         0.0092 
Arsenic.......................        1.49       <0.000647       0.0138 
Barium........................      302           0.346          0.025  
Beryllium.....................        0.4203     <0.00051       <0.00051
Cadmium.......................        1.23       <0.00386        0.0140 
Chromium (total)..............       45.4        <0.00524        0.0171 
Cobalt........................       46.7         0.0350         0.0141 
Copper........................      198           0.0783         0.00989
Lead..........................       41.3        <0.0022        <0.0022 
Mercury.......................      < 0.0125      0.0002        <0.00003
Nickel........................      837           0.411          0.176  
Selenium......................        1.30       <0.00708        0.00399
Silver........................       10.4         0.00601       <0.00519
Thallium......................      < 0.273      <0.00173       <0.00185
Tin...........................        4.16       <0.0145         0.0161 
Vanadium......................       63.1         0.0397         0.0687 
Zinc..........................     1930           0.568          0.345  
Hydrogen Cyanide..............      < 0.25                              
Hydrogen Sulfide..............     < 24.8                               
Oil and Grease................    <126                                  
------------------------------------------------------------------------
< Denotes that the constituent was not detected at the detection limit  
  specified in the table.                                               
\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.                                  

    Texas Eastman used SW-846 Methods 8240 and 8270 to quantify the 
total constituent concentrations of 50 volatile and 115 semivolatile 
organic compounds, respectively, in the ash. This suite of constituents 
included all of the nonpesticide organic constituents listed in 
Sec. 261.24. Also, Texas Eastman used SW-846 Methods 8240 and 8270 to 
quantify the leachable concentrations of 50 volatile and 115 semi-
volatile organic compounds, respectively, in the untreated ash samples, 
following extraction by SW-846 Method 1311 (TCLP). This suite of 
constituents included all of the organic constituents listed in 
Sec. 261.24.
    In addition to analyzing the FBI ash for TC metals, samples of the 
ash were analyzed for metals using the modified multiple extraction 
procedure (MEP) (SW-846, Method 1330). The MEP simulates the long-term 
effects of leaching in a landfill and is used to determine the overall 
effectiveness of a stabilization process. During the sampling program, 
a sample of untreated ash was analyzed using the MEP test to determine 
the long-term leachability of metals. Table 2 presents the maximum 
total and leachate concentrations of all detected organic constituents 
in Texas Eastman's waste and waste extract samples. Lastly, on the 
basis of explanations and analytical data provided by Texas Eastman, 
none of the analyzed samples exhibited the characteristics of 
ignitability, corrosivity, or reactivity. See, Sec. 261.21, Sec. 261.22 
and Sec. 261.23.

  Table 2.--Maximum Total Constituent and Leachate Concentrations (ppm) 
                          \1\ Untreated FBI Ash                         
------------------------------------------------------------------------
                                                  Total         TCLP    
            Organic constituents               constituent    leachate  
                                                analyses      analyses  
------------------------------------------------------------------------
Acetone.....................................        0.021        0.059  
Benzo(a)pyrene..............................        0.0217     < 0.00441
Carbon Disulfide............................        0.0526       0.0151 
Benzo(g,h,i) perylene.......................        0.0444     < 0.00626
Indeno (1,2,3-cd) pyrene....................        0.0188     < 0.0049 
Methylene Chloride..........................        0.077      < 0.0185 
------------------------------------------------------------------------
< Denotes that the constituent was not detected at the detection limit  
  specified in the table.                                               
\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.                                  

    Texas Eastman submitted a signed certification stating that the 
maximum annual generation rate of the FBI ash will be 7,000 cubic yards 
of waste. The EPA reviews a petitioner's estimates and, on occasion, 
has requested a petitioner to reevaluate estimated waste volume. The 
EPA accepted Texas Eastman's certified estimate of 7,000 cubic yards of 
FBI ash.
    The EPA does not generally verify submitted test data before 
proposing delisting decisions. The sworn affidavit submitted with this 
petition binds the petitioner to present truthful and accurate results. 
The EPA, however, has maintained a spot-check sampling and analysis 
program to verify the representative nature of the data for some 
percentage of the submitted petitions. A spot-check visit to a selected 
facility may be initiated before finalizing a delisting petition or 
after granting a final exclusion.

[[Page 32759]]

D. Agency Evaluation

    The EPA considered the appropriateness of alternative waste 
management scenarios for Texas Eastman's FBI ash and decided, based on 
the information provided in the petition, that disposal in a municipal 
solid waste landfill is the most reasonable, worst-case scenario for 
this waste. Under a landfill disposal scenario, the major exposure 
route of concern for any hazardous constituents would be ingestion of 
contaminated ground water. The EPA, therefore, evaluated Texas 
Eastman's petitioned waste using the modified EPA Composite Model for 
Landfills (EPACML) which predicts the potential for groundwater 
contamination from wastes that are landfilled. See, 56 FR 32993 (July 
18, 1991), 56 FR 67197 (December 30, 1991), and the RCRA public docket 
for these notices for a detailed description of the EPACML model, the 
disposal assumptions, and the modifications made for delisting. This 
model, which includes both unsaturated and saturated zone transport 
modules, was used to predict reasonable worst-case contaminant levels 
in groundwater at a compliance point (i.e., a receptor well serving as 
a drinking water supply). Specifically, the model estimated the 
dilution/attenuation factor (DAF) resulting from subsurface processes 
such as three-dimensional dispersion and dilution from groundwater 
recharge for a specific volume of waste. The EPA requests comments on 
the use of the EPACML as applied to the evaluation of Texas Eastman's 
petitioned waste (FBI untreated ash).
    For the evaluation of Texas Eastman's petitioned waste, the EPA 
used the EPACML to evaluate the mobility of the hazardous inorganic 
constituents detected in the extract of samples of Texas Eastman's FBI 
untreated ash. DAFs are currently calculated assuming an ongoing 
process generates wastes for 20 years. The DAF for the waste volume of 
7,000 cubic yards/year assuming 20 years of generation is 45. The EPA's 
evaluation, using a DAF of 45, maximum waste volume estimate of 7,000 
cubic yards and the maximum reported TCLP or MEP leachate 
concentrations (See, Table 1), yielded compliance-point concentrations 
(See, Table 3) that are below the current health-based levels used in 
delisting decision-making.

   Table 3.--EPACML: Calculated Compliance-Point Concentrations (ppm)   
                            Untreated FBI Ash                           
------------------------------------------------------------------------
                                                              Levels of 
                                          Compliance point   regulatory 
         Inorganic constituents            concentrations    concern \2\
                                             \1\ (mg/l)        (mg/l)   
------------------------------------------------------------------------
Antimony...............................          0.00048           0.006
Arsenic................................          0.00031           0.05 
Barium.................................          0.00769           2.0  
Cadmium................................          0.00031           0.005
Chromium...............................          0.00038           0.1  
Cobalt.................................          0.00078           2.1  
Copper.................................          0.00174           1.3  
Mercury................................          0.0002            0.001
Nickel.................................          0.00913           0.1  
Selenium...............................          0.00009           0.20 
Silver.................................          0.00013           0.2  
Tin....................................          0.00036          21.0  
Vanadium...............................          0.00153           0.3  
Zinc...................................          0.01262          10.0  
------------------------------------------------------------------------
\1\ Using the maximum TCLP leachate level and based on a DAF of 45      
  calculated using the EPACML for a maximum volume generated annually of
  7,000 cubic yards.                                                    
\2\ See, ``Docket Report on Health-Based Levels and Solubilities Used in
  the Evaluation of Delisting Petitions,'' May 1996 located in the RCRA 
  public docket for today's notice.                                     

    The maximum reported or calculated leachate concentrations of 
arsenic, antimony, barium, cadmium, chromium, copper, nickel, mercury, 
selenium, silver, vanadium, and zinc in the FBI ash yielded compliance 
point concentrations well below the health-based levels used in 
delisting decision-making. The EPA did not evaluate the mobility of the 
remaining inorganic constituents (i.e., beryllium, lead, and thallium) 
from Texas Eastman's waste because they were not detected in the 
leachate using the appropriate analytical test methods (See, Table 1). 
The EPA believes that it is inappropriate to evaluate non-detectable 
concentrations of a constituent of concern in its modeling efforts if 
the non-detectable value was obtained using the appropriate analytical 
method. If a constituent cannot be detected (when using the appropriate 
analytical method with an adequate detection limit), the EPA assumes 
that the constituent is not present and therefore does not present a 
threat to human health or the environment.
    The EPA also evaluated the potential hazards of acetone and carbon 
disulfide, the organic constituents detected in the TCLP extract of 
samples of Texas Eastman's FBI ash. In particular, were these leachate 
concentrations evaluated using the EPACML, the calculated compliance-
point concentration would be 0.00131 ppm and 0.00034 ppm respectively; 
these values are significantly below the respective health based values 
of 4.
    As reported in Table 1, the concentrations of reactive cyanide and 
sulfide were not detected in Texas Eastman's untreated FBI ash. These 
concentrations are below the EPA's interim standards of 250 and 500 
ppm, respectively. See, ``Interim Agency Thresholds for Toxic Gas 
Generation,'' July 12, 1985, internal Agency Memorandum in the RCRA 
public docket. Therefore, reactive cyanide and sulfide levels are not 
of concern.
    The EPA concluded, after reviewing Texas Eastman's processes, that 
no other hazardous constituents of concern, other than those tested 
for, are likely to be present or formed as reaction products or by-
products in Texas Eastman's waste. In addition, on the basis of 
explanations and analytical data provided by Texas Eastman, pursuant to 
Sec. 260.22, the EPA concludes that the waste does not exhibit any of 
the

[[Page 32760]]

characteristics of ignitability, corrosivity, or reactivity. See, 
Sec. 261.21, Sec. 261.22, and Sec. 261.23, respectively.
    During the evaluation of Texas Eastman's petition, the EPA also 
considered the potential impact of the petitioned waste via non-ground 
water routes (i.e., air emission and surface runoff). With regard to 
airborne dispersion in particular, the EPA believes that exposure to 
airborne contaminants from Texas Eastman's petitioned waste is 
unlikely. The EPA evaluated the potential hazards resulting from the 
unlikely scenario of airborne exposure to hazardous constituents 
released from Texas Eastman's waste in an open landfill. The results of 
this worst-case analysis indicated that there is no substantial present 
or potential hazard to human health from airborne exposure to 
constituents from Texas Eastman's FBI ash. A description of the EPA's 
assessment of the potential impact of Texas Eastman's waste, with 
regard to airborne dispersion of waste contaminants, is presented in 
the RCRA public docket for today's proposed rule.
    The EPA also considered the potential impact of the petitioned 
waste via a surface water route. The EPA believes that containment 
structures at municipal solid waste landfills can effectively control 
surface water run-off, as the Subtitle D regulations (See, 56 FR 50978, 
October 9, 1991) prohibit pollutant discharges into surface waters. 
Furthermore, the concentrations of any hazardous constituents dissolved 
in the runoff will tend to be lower than the levels in the TCLP or MEP 
leachate analyses reported in today's notice, due to the aggressive 
acid medium used for extraction in the TCLP and MEP tests. The EPA 
believes that, in general, leachate derived from the waste is unlikely 
to enter a surface water body directly without first traveling through 
the saturated subsurface zone where further dilution and attenuation of 
hazardous constituents will also occur. Leachable concentrations 
provide a direct measure of the solubility of a toxic constituent in 
water, and are indicative of the fraction of the constituent that may 
be mobilized in surface water, as well as ground water. The reported 
TCLP and MEP extraction data show that the metals in Texas Eastman's 
FBI ash that might be released from Texas Eastman's waste to surface 
water would be likely to remain undissolved or leach in concentrations 
that would be below the health-based levels of concern. Finally, any 
transported constituents would be further diluted in the receiving 
surface water body.
    Based on the reasons discussed above, EPA believes that 
contamination of surface water through run-off from the waste disposal 
area is very unlikely. Nevertheless, the EPA evaluated potential 
impacts on surface water if Texas Eastman's waste were released from a 
municipal solid waste landfill through run-off and erosion. See, the 
RCRA public docket for today's proposed rule. The estimated levels of 
the hazardous constituents of concern in surface water would be well 
below health-based levels for human health, as well as below the EPA 
Chronic Water Quality Criteria for aquatic organisms (USEPA, OWRS, 
1987). The EPA, therefore, concluded that Texas Eastman's untreated FBI 
ash is not a substantial present or potential hazard to human health 
and the environment via the surface water exposure pathway.

E. Conclusion

    The EPA believes that the descriptions of the Texas Eastman 
incineration process and analytical characterizations, in conjunction 
with the proposed verification testing requirements (as discussed later 
in this notice), provide a reasonable basis to grant Texas Eastman's 
petition for a conditional exclusion of the untreated FBI ash. The EPA 
believes that the lack of variability between the treated and untreated 
ash samples collected from the characterization of the ash in 1994 and 
the LDR data for the untreated ash adequately represent the variations 
in the raw materials and processing. The EPA believes that the data 
submitted in support of the petition show that Texas Eastman's 
incineration process can render the sludge from the waste water 
treatment system non-hazardous. The EPA has reviewed the sampling 
procedures used by Texas Eastman and has determined that they satisfy 
EPA criteria for collecting representative samples of the variations in 
constituent concentrations of the FBI ash. The data submitted in 
support of the petition show that constituents in Texas Eastman's waste 
are presently below the health-based levels used in the delisting 
decision-making. The EPA believes that Texas Eastman has successfully 
demonstrated that the untreated FBI ash is non-hazardous.
    The EPA, therefore, proposes to grant a conditional exclusion to 
Texas Eastman, located in Longview, Texas, for the untreated FBI ash 
described in its petition. The EPA's decision to exclude this waste is 
based on descriptions of the incineration activities associated with 
the petitioned waste and characterization of the FBI ash. If the 
proposed rule is finalized, the petitioned waste will no longer be 
subject to regulation under Parts 262 through 268 and the permitting 
standards of Part 270.

F. Verification Testing Conditions

    1. Delisting Levels: All leachable concentrations for those metals 
must not exceed the following levels (ppm). Metal concentrations must 
be measured in the waste leachate by the method specified in 40 CFR 
Part 261.24.
(A) Inorganic Constituents
Antimony--0.27; Arsenic--2.25; Barium--90.0; Beryllium--0.0009; 
Cadmium--0.225; Chromium--4.5; Cobalt--94.5; Copper--58.5; Lead--0.675; 
Mercury--0.045; Nickel--4.5; Selenium--1.0; Silver--5.0; Thallium--
0.135; Tin--945.0; Vanadium--13.5; Zinc--450.0
(B) Organic Constituents
Acenaphthene--90.0
Acetone--180.0
Benzene--0.135
Benzo(a)anthracene--0.00347
Benzo(a)pyrene--0.00045
Benzo(b) fluoranthene--0.00320
Bis(2 ethylhexyl) phthalate--0.27
Butylbenzyl phthalate--315.0
Chloroform--0.45
Chlorobenzene--31.5
Carbon Disulfide--180.0
Chrysene--0.1215
1,2-Dichlorobenzene--135.0
1,4-Dichlorobenzene--0.18
Di-n-butyl phthalate--180.0
Di-n-octyl phthalate--35.0
1,4 Dioxane--0.36
Ethyl Acetate--1350.0
Ethyl Ether--315.0
Ethylbenzene--180.0
Flouranthene--45.0
Fluorene--45.0
1-Butanol--180.0
Methyl Ethyl Ketone--200.0
Methylene Chloride--0.45
Methyl Isobutyl Ketone--90.0
Naphthalene--45.0
Pyrene--45.0
Toluene--315.0
Xylenes--3150.0

    This paragraph provides the levels of constituents for which Texas 
Eastman must test the leachate from the FBI ash, below which the ash 
would be considered non-hazardous. The EPA selected the set of 
inorganic constituents specified after reviewing information about the 
composition of the waste, descriptions of Texas Eastman's treatment 
process, previous test data provided for the untreated ash and the 
health-based levels used in delisting decision-making.
    The EPA established the proposed delisting levels for this 
paragraph by

[[Page 32761]]

back-calculating the maximum allowable leachate concentrations (MALs) 
from the health-based levels (HBLs) for the constituents of concern 
using the EPACML chemical-specific DAFs of 45 (See, previous 
discussions in Section D--Agency Evaluation), i.e., MAL = HBL  x  DAF. 
These delisting levels correspond to the allowable levels measured in 
the TCLP extract of the waste.

    2. Waste Holding and Handling: Texas Eastman must store in 
accordance with its RCRA permit, or continue to dispose of as 
hazardous all FBI ash generated until the Initial and Subsequent 
Verification Testing described in Paragraph 4 and 5 below is 
completed and valid analyses demonstrate that all Verification 
Testing Conditions are satisfied. After completion of Initial and 
Subsequent Verification Testing, if the levels of constituents 
measured in the samples of the FBI ash do not exceed the levels set 
forth in Paragraph 1 above, and written notification is given by 
EPA, then the waste is non-hazardous and may be managed and disposed 
of in accordance with all applicable solid waste regulations.

    The purpose of this paragraph is to ensure that ash which contains 
hazardous levels of inorganic and organic constituents are managed and 
disposed of in accordance with Subtitle C of RCRA. Holding the waste 
until characterization is complete will protect against improper 
handling of hazardous material. If the EPA determines that the data 
collected under this condition do not support the data provided for the 
petition, the exclusion will not cover the generated incinerator ash.

    3. Verification Testing Requirements: Sample collection and 
analyses, including quality control procedures, must be performed 
according to SW-846 methodologies. If EPA judges the incineration 
process to be effective under the operating conditions used during 
the initial verification testing described in Paragraph 4 below, 
Texas Eastman may replace the testing required in Paragraph 4 with 
the testing required in Paragraph 5 below. Texas Eastman must, 
however, continue to test as specified in Paragraph 4 until notified 
by EPA in writing that testing in Paragraph 4 may be replaced by the 
testing described in Paragraph 5.
    4. Initial Verification Testing: During the first 40 operating 
days of the FBI incinerator after the final exclusion is granted, 
Texas Eastman must collect and analyze daily composites of the FBI 
ash. Daily composites must be composed of representative grab 
samples collected every 6 hours during each 24-hour FBI operating 
cycle. The FBI ash must be analyzed, prior to disposal of the ash, 
for all constituents listed in Paragraph 1. Texas Eastman must 
report the operational and analytical test data, including quality 
control information, obtained during this initial period no later 
than 90 days after the incineration of the wastewater treatment 
sludge.

    The EPA believes that an initial period of 40 days is sufficient 
for a facility to collect sufficient data to verify that the data 
provided for the untreated ash in the 1994 petition and LDR information 
is representative of the ash to be delisted.

    5. Subsequent Verification Testing: Following the completion of 
the Initial Verification Testing, Texas Eastman may request to 
monitor operating conditions and analyze samples representative of 
each quarter of operation during the first year of ash generation. 
The samples must represent the untreated ash generated over one 
quarter. Following written notification from EPA, Texas Eastman may 
begin the quarterly testing described in this Paragraph.

    The EPA believes that the concentrations of the constituents of 
concerns in the FBI ash may vary somewhat over time. As a result, in 
order to ensure that Texas Eastman's treatment process can effectively 
handle any variation in constituent concentrations in the incinerator 
ash, the EPA is proposing a subsequent verification testing condition. 
The proposed subsequent testing would verify that the FBI is operated 
in a manner similar to its operation during the initial verification 
testing and that the untreated incinerator ash does not exhibit 
unacceptable levels of toxic constituents. Therefore, the EPA is 
proposing to require Texas Eastman to analyze representative samples of 
the incinerator ash on an quarterly basis during the first year of 
waste generation. If the EPA determines that the data from the initial 
verification period demonstrates that the incineration process is 
effective, Texas Eastman may request that EPA allow it to perform 
verification testing on a quarterly basis. If approved in writing by 
EPA, then Texas Eastman may begin verification testing quarterly.

    6. Termination of Organic Testing: Texas Eastman must continue 
testing as required under Paragraph 5 for organic constituents 
specified in Paragraph 1 until the analyses submitted under 
Paragraph 5 show a minimum of two consecutive quarterly samples 
below the delisting levels in Paragraph 1. Texas Eastman may then 
request that quarterly organic testing be terminated. After EPA 
notifies Texas Eastman in writing it may terminate quarterly organic 
testing.
    7. Annual Testing: Following termination of quarterly testing 
under either Paragraphs 5 or 6, Texas Eastman must continue to test 
a representative composite sample for all constituents listed in 
Paragraph 1 (including organics) on an annual basis (no later than 
twelve months after the date that the final exclusion is effective).

    The EPA is proposing to terminate the subsequent testing conditions 
for organics as allowed in Paragraph 6 after Texas Eastman has 
demonstrated the delisting levels for the untreated ash are 
consistently met. In order to confirm that the characteristics of the 
waste do not change significantly over time, Texas Eastman must 
continue to analyze a representative sample of the untreated FBI ash 
for organic constituents on an annual basis (no later than twelve 
months after the date that the final exclusion is effective). The 
Fluidized Bed Incinerator as described in the petition has demonstrated 
its effectiveness in removing organic constituents from solid matrices, 
but not inorganic constituents. Therefore, Paragraph 1 (A), which 
requires Texas Eastman to test for the specified inorganic constituents 
of concern that may not be treated by this process, is not subject to 
the termination provision in Paragraph 6.

    8. Changes in Operating Conditions: If Texas Eastman 
significantly changes the incineration process described in its 
petition or implements any new manufacturing or production 
process(es) which generate(s) the ash and which may or could affect 
the composition or type of waste generated established under 
Paragraph 3 (by illustration {but not limitation}, use of 
stabilization reagents or operating conditions of the fluidized bed 
incinerator), Texas Eastman must notify the EPA in writing and 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.

    Paragraph 8 would allow Texas Eastman the flexibility of modifying 
its processes (e.g., use of new treatment reagents or change in 
operating conditions) to improve its treatment process. However, Texas 
Eastman must demonstrate the effectiveness of the modified process and 
request approval from the EPA. Wastes generated during the new process 
demonstration must be managed as a hazardous waste until written 
approval has been obtained and Paragraph 1 is satisfied. If Texas 
Eastman changes operating conditions as described in Paragraph 8, then 
Texas Eastman must reinstate all testing in Paragraph 3, pending a new 
demonstration under this condition for termination.

    9. Data Submittals: The data obtained through Paragraph 3 must 
be submitted to Mr. William Gallagher, Chief, Region 6 Delisting 
Program, U.S. EPA, 1445 Ross Avenue, Dallas, Texas 75202-2733, Mail 
Code, (6PD-O) within the time period specified. Records of operating 
conditions and analytical data from Paragraph 3 must be compiled, 
summarized, and maintained on site for a minimum of five years. 
These records and data must be furnished upon request by EPA, or the 
State of Texas, and

[[Page 32762]]

made available for inspection. Failure to submit the required data 
within the specified time period or maintain the required records on 
site for the specified time will be considered by EPA, at its 
discretion, sufficient basis to revoke the exclusion to the extent 
directed by EPA. All data must be accompanied by 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 USC Sec. 1001 and 42 USC 
Sec. 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.
    In the event that 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.

    To provide appropriate documentation that Texas Eastman's facility 
is properly treating the waste, all analytical data obtained through 
Paragraph 3, including quality control information, must be compiled, 
summarized, and maintained on site for a minimum of five years. 
Paragraph 9 requires that these data be furnished upon request and made 
available for inspection by any employee or representative of EPA or 
the State where the treatment facility is located.
    If made final, the proposed exclusion will apply only to the 7,000 
cubic yards generated annually of FBI ash generated during the 
treatment of its wastewater sludge in the Texas Eastman fluidized bed 
incinerator after successful verification testing. Except as described 
in Paragraph 8, the facility would be required to submit a new 
exclusion if the treatment process specified for the FBI incinerator or 
the WWTP is significantly altered. Texas Eastman would be required to 
file a new petition for any new manufacturing or production 
process(es), or significant changes from the current process(es) 
described in its petition which generates the ash or which may or could 
affect the composition or type of waste generated. The facility must 
treat any FBI ash in excess of the original 7,000 cubic yards as 
hazardous unless a new exclusion is granted.
    Although management of the waste covered by this petition would be 
removed from Subtitle C jurisdiction upon final promulgation of an 
exclusion, the generator of a delisted waste must either treat, store, 
or dispose of the waste in an on-site facility, or ensure that the 
waste is delivered to an off-site storage, treatment, or disposal 
facility, either of which is permitted, licensed, or registered by a 
State to manage municipal or industrial solid waste. Alternatively, the 
delisted waste may be delivered to a facility that beneficially uses or 
reuses, or legitimately recycles or reclaims the waste, or treats the 
waste prior to such beneficial use, reuse, recycling, or reclamation.

III. Effective Date

    This rule, if made final, will become effective immediately upon 
final publication. 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, if finalized, would reduce the existing requirements for 
persons generating hazardous wastes. In light of the unnecessary 
hardship and expense that would be imposed on this petitioner by an 
effective date six months after publication and the fact that a six-
month deadline is not necessary to achieve the purpose of Section 3010, 
EPA believes that this exclusion should be effective immediately upon 
final publication. These reasons also provide a basis for making this 
rule effective immediately, upon final publication, under the 
Administrative Procedure Act, pursuant to 5 U.S.C. Sec. 553(d).

IV. Regulatory Impact

    Under Executive Order 12866, EPA must conduct an ``assessment of 
the potential costs and benefits'' for all ``significant'' regulatory 
actions. This proposal to grant an exclusion is not significant, since 
its effect, if promulgated, would be to reduce the overall costs and 
economic impact of EPA's hazardous waste management regulations. This 
reduction would be achieved by excluding waste generated at a specific 
facility from EPA's lists of hazardous wastes, thereby enabling this 
facility to treat its waste as non-hazardous. There is no additional 
impact due to today's rule. Therefore, this proposal would not be a 
significant regulation, and no cost/benefit assessment is required. The 
Office of Management and Budget (OMB) has also exempted this rule from 
the requirement for OMB review under Section (6) of Executive Order 
12866.

V. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. Secs. 601-612, 
whenever an agency is required to publish a general notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the impact of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
No regulatory flexibility analysis is required, however, if the 
Administrator or delegated representative certifies that the rule will 
not have any impact on any small entities.
    This rule, if promulgated, will not have any adverse economic 
impact on any small entities since its effect would be to reduce the 
overall costs of EPA's hazardous waste regulations and would be limited 
to one facility. Accordingly, I hereby certify that this proposed 
regulation, if promulgated, will not have a significant economic impact 
on a substantial number of small entities. This regulation, therefore, 
does not require a regulatory flexibility analysis.

VI. Paperwork Reduction Act

    Information collection and recordkeeping requirements associated 
with this proposed rule have been approved by the Office of Management 
and Budget (OMB) under the provisions of the Paperwork Reduction Act of 
1980 (Pub. L. 96-511, 44 U.S.C. Sec. 3501 et seq.) and have been 
assigned OMB Control Number 2050-0053.

VII. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``UMRA''), Public Law 104-4, which was signed into law on March 22, 
1995, EPA generally must prepare a written statement for rules with 
Federal mandates that may result in estimated costs to State, local, 
and tribal governments in the aggregate, or to the private sector, of 
$100 million or more in any one year. When such a statement is required 
for EPA rules, under section 205 of the UMRA, EPA must identify and 
consider alternatives, including the least costly, most cost-effective 
or least burdensome alternative that achieves the objectives of the 
rule. EPA must select that alternative, unless the Administrator 
explains in the final rule why it was not selected or it is 
inconsistent with law. Before EPA

[[Page 32763]]

establishes regulatory requirements that may significantly or uniquely 
affect small governments, including tribal governments, it must develop 
under section 203 of the UMRA a small government agency plan. The plan 
must provide for notifying potentially affected small governments, 
giving them meaningful and timely input in the development of EPA 
regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising them on compliance 
with the regulatory requirements. The UMRA generally defines a Federal 
mandate for regulatory purposes as one that imposes an enforceable duty 
upon state, local or tribal governments or the private sector. EPA 
finds that today's proposed delisting decision is deregulatory in 
nature and does not impose any enforceable duty upon state, local or 
tribal governments or the private sector. In addition, the proposed 
delisting does not establish any regulatory requirements for small 
governments and so does not require a small government agency plan 
under UMRA section 203.

List 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: June 11, 1996.
Jane N. Saginaw,
Regional Administrator.

    For the reasons set out in the preamble, 40 CFR Part 261 is 
proposed to be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for Part 261 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

    2. In Tables 1, 2, and 3 of Appendix IX of Part 261 it is proposed 
to add the following waste stream in alphabetical order by facility to 
read as follows:

Appendix IX to Part 261--Wastes Excluded Under Sec. 260.20 and 
260.22.

                               Table 1.--Wastes Excluded From Non-Specific Sources                              
----------------------------------------------------------------------------------------------------------------
            Facility                         Address                             Waste description              
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
Texas Eastman..................  Longview, Texas................  Incinerator ash (at a maximum generation of   
                                                                   7,000 cubic yards per calendar year)         
                                                                   generated from the incineration of sludge    
                                                                   from the wastewater treatment plant (EPA     
                                                                   Hazardous Waste No.D001, D003, D018, D019,   
                                                                   D021, D022, D027, D028, D029, D030, D032,    
                                                                   D033, D034, D035, D036, D038, D039, D040,    
                                                                   F001, F002, F003, F005, after [insert        
                                                                   publication date of the final rule]. Texas   
                                                                   Eastman must implement a testing program that
                                                                   meets the following conditions for the       
                                                                   petition to be valid:                        
                                                                  1. Delisting Levels: All leachable            
                                                                   concentrations for those metals must not     
                                                                   exceed the following levels (ppm). Metal     
                                                                   concentrations must be measured in the waste 
                                                                   leachate by the method specified in 40 CFR   
                                                                   Part 261.24.                                 
                                                                                                                
                                                                            (A) Inorganic Constituents          
                                                                                                                
                                                                  Antimony--0.27; Arsenic--2.25; Barium--90.0;  
                                                                   Beryllium--0.0009; Cadmium--0.225; Chromium--
                                                                   4.5; Cobalt--94.5; Copper--58.5; Lead--0.675;
                                                                   Mercury--0.045; Nickel--4.5; Selenium--1.0;  
                                                                   Silver--5.0; Thallium--0.135; Tin--945.0;    
                                                                   Vanadium--13.5; Zinc--450.0.                 
                                                                             (B) Organic Constituents           
                                                                                                                
                                                                  Acenaphthene--90.0; Acetone--180.0; Benzene-- 
                                                                   0.135; Benzo(a)anthracene--0.00347;          
                                                                   Benzo(a)pyrene--0.00045; Benzo(b)            
                                                                   fluoranthene--0.00320; Bis(2 ethylhexyl)     
                                                                   phthalate--0.27; Butylbenzyl phthalate--     
                                                                   315.0; Chloroform--0.45; Chlorobenzene--31.5;
                                                                   Carbon Disulfide--180.0; Chrysene--0.1215;   
                                                                   1,2-Dichlorobenzene--135.0; 1,4-             
                                                                   Dichlorobenzene--0.18; Di-n-butyl phthalate--
                                                                   180.0; Di-n-octyl phthalate--35.0; 1,4       
                                                                   Dioxane--0.36; Ethyl Acetate--1350.0; Ethyl  
                                                                   Ether--315.0; Ethylbenzene--180.0;           
                                                                   Flouranthene--45.0; Fluorene--45.0; 1-       
                                                                   Butanol--180.0; Methyl Ethyl Ketone--200.0;  
                                                                   Methylene Chloride--0.45; Methyl Isobutyl    
                                                                   Ketone--90.0; Naphthalene--45.0; Pyrene--    
                                                                   45.0; Toluene--315.0; Xylenes--3150.0.       
                                                                  2. Waste Holding and Handling: Texas Eastman  
                                                                   must store in accordance with its RCRA       
                                                                   permit, or continue to dispose of as         
                                                                   hazardous all FBI ash generated until the    
                                                                   Initial and Subsequent Verification Testing  
                                                                   described in Paragraph 4 and 5 below is      
                                                                   completed and valid analyses demonstrate that
                                                                   all Verification Testing Conditions are      
                                                                   satisfied. After completion of Initial and   
                                                                   Subsequent Verification Testing, if the      
                                                                   levels of constituents measured in the       
                                                                   samples of the FBI ash do not exceed the     
                                                                   levels set forth in Paragraph 1 above, and   
                                                                   written notification is given by EPA, then   
                                                                   the waste is non-hazardous and may be managed
                                                                   and disposed of in accordance with all       
                                                                   applicable solid waste regulations.          
                                                                  3. Verification Testing Requirements: Sample  
                                                                   collection and analyses, including quality   
                                                                   control procedures, must be performed        
                                                                   according to SW-846 methodologies. If EPA    
                                                                   judges the incineration process to be        
                                                                   effective under the operating conditions used
                                                                   during the initial verification testing      
                                                                   described in Paragraph 4 below, Texas Eastman
                                                                   may replace the testing required in Paragraph
                                                                   4 with the testing required in Paragraph 5   
                                                                   below. Texas Eastman must, however, continue 
                                                                   to test as specified in Paragraph 4 until    
                                                                   notified by EPA in writing that testing in   
                                                                   Paragraph 4 may be replaced by the testing   
                                                                   described in Paragraph 5.                    
                                                                  4. Initial Verification Testing: During the   
                                                                   first 40 operating days of the FBI           
                                                                   incinerator after the final exclusion is     
                                                                   granted, Texas Eastman must collect and      
                                                                   analyze daily composites of the FBI ash.     
                                                                   Daily composites must be composed of         
                                                                   representative grab samples collected every 6
                                                                   hours during each 24-hour FBI operating      
                                                                   cycle. The FBI ash must be analyzed, prior to
                                                                   disposal of the ash, for all constituents    
                                                                   listed in Paragraph 1. Texas Eastman must    
                                                                   report the operational and analytical test   
                                                                   data, including quality control information, 
                                                                   obtained during this initial period no later 
                                                                   than 90 days after the incineration of the   
                                                                   wastewater treatment sludge.                 

[[Page 32764]]

                                                                                                                
                                                                  5. Subsequent Verification Testing: Following 
                                                                   the completion of the Initial Verification   
                                                                   Testing, Texas Eastman may request to monitor
                                                                   operating conditions and analyze samples     
                                                                   representative of each quarter of operation  
                                                                   during the first year of ash generation. The 
                                                                   samples must represent the untreated ash     
                                                                   generated over one quarter. Following written
                                                                   notification from EPA, Texas Eastman may     
                                                                   begin the quarterly testing described in this
                                                                   Paragraph.                                   
                                                                  6. Termination of Organic Testing: Texas      
                                                                   Eastman must continue testing as required    
                                                                   under Paragraph 5 for organic constituents   
                                                                   specified in Paragraph 1 until the analyses  
                                                                   submitted under Paragraph 5 show a minimum of
                                                                   two consecutive quarterly samples below the  
                                                                   delisting levels in Paragraph 1. Texas       
                                                                   Eastman may then request that quarterly      
                                                                   organic testing be terminated. After EPA     
                                                                   notifies Texas Eastman in writing it may     
                                                                   terminate quarterly organic testing.         
                                                                  7. Annual Testing: Following termination of   
                                                                   quarterly testing under either Paragraphs 5  
                                                                   or 6, Texas Eastman must continue to test a  
                                                                   representative composite sample for all      
                                                                   constituents listed in Paragraph 1 (including
                                                                   organics) on an annual basis (no later than  
                                                                   twelve months after the date that the final  
                                                                   exclusion is effective).                     
                                                                  8. Changes in Operating Conditions: If Texas  
                                                                   Eastman significantly changes the            
                                                                   incineration process described in its        
                                                                   petition or implements any new manufacturing 
                                                                   or production process(es) which generate(s)  
                                                                   the ash and which may or could affect the    
                                                                   composition or type of waste generated       
                                                                   established under Paragraph 3 (by            
                                                                   illustration {but not limitation}, use of    
                                                                   stabilization reagents or operating          
                                                                   conditions of the fluidized bed incinerator),
                                                                   Texas Eastman must notify the EPA in writing 
                                                                   and 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.                  
                                                                  9. Data Submittals: The data obtained through 
                                                                   Paragraph 3 must be submitted to Mr. William 
                                                                   Gallagher, Chief, Region 6 Delisting Program,
                                                                   U.S. EPA, 1445 Ross Avenue, Dallas, Texas    
                                                                   75202-2733, Mail Code, (6PD-O) within the    
                                                                   time period specified. Records of operating  
                                                                   conditions and analytical data from Paragraph
                                                                   3 must be compiled, summarized, and          
                                                                   maintained on site for a minimum of five     
                                                                   years. These records and data must be        
                                                                   furnished upon request by EPA, or the State  
                                                                   of Texas, and made available for inspection. 
                                                                   Failure to submit the required data within   
                                                                   the specified time period or maintain the    
                                                                   required records on site for the specified   
                                                                   time will be considered by EPA, at its       
                                                                   discretion, sufficient basis to revoke the   
                                                                   exclusion to the extent directed by EPA. All 
                                                                   data must be accompanied by 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 USC Sec.  1001 and 42 USC Sec.
                                                                    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.              
                                                                  In the event that 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.    
                                                                  10. Notification Requirements:  Texas Eastman 
                                                                   must provide a one-time written notification 
                                                                   to any State Regulatory Agency to which or   
                                                                   through which the delisted waste described   
                                                                   above will be transported for disposal at    
                                                                   least 60 days prior to the commencement of   
                                                                   such activities. Failure to provide such a   
                                                                   notification will result in a violation of   
                                                                   the delisting petition and a possible        
                                                                   revocation of the decision.                  
----------------------------------------------------------------------------------------------------------------



                                 Table 2.--Wastes Excluded From Specific Sources                                
----------------------------------------------------------------------------------------------------------------
            Facility                         Address                             Waste description              
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
Texas Eastman..................  Longview, Texas................  Incinerator ash (at a maximum generation of   
                                                                   7,000 cubic yards per calendar year)         
                                                                   generated from the incineration of sludge    
                                                                   from the wastewater treatment plant (EPA     
                                                                   Hazardous Waste No. K009 and K010, after     
                                                                   [insert publication date of the final rule]. 
                                                                   Texas Eastman must implement a testing       
                                                                   program that meets conditions found in Table 
                                                                   1. Wastes Excluded From Non-Specific Sources 
                                                                   for the petition to be valid.                
----------------------------------------------------------------------------------------------------------------


[[Page 32765]]



 Table 3.--Wastes Excluded From Commercial Chemical Products, Off-Specification Species, Container Residues, and
                                              Soil Residues Thereof                                             
----------------------------------------------------------------------------------------------------------------
            Facility                         Address                             Waste description              
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                         *                                                      
Texas Eastman..................  Longview, Texas................  Incinerator ash (at a maximum generation of   
                                                                   7,000 cubic yards per calendar year)         
                                                                   generated from the incineration of sludge    
                                                                   from the wastewater treatment plant (EPA     
                                                                   Hazardous Waste No. U001, U002, U003, U019,  
                                                                   U028, U031, U037, U044, U056, U069, U070,    
                                                                   U107, U108, U112, U113, U115, U117, U122,    
                                                                   U140, U147, U151, U154, U159, U161, U169,    
                                                                   U190, U196, U211, U213, U226, U239, and U359,
                                                                   after [insert publication date of the final  
                                                                   rule]. Texas Eastman must implement the      
                                                                   testing program described in Table 1. Wastes 
                                                                   Excluded From Non-Specific Sources for the   
                                                                   petition to be valid.                        
                                                                                                                
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
----------------------------------------------------------------------------------------------------------------

[FR Doc. 96-15883 Filed 6-24-96; 8:45 am]
BILLING CODE 6560-50-P