[Federal Register Volume 66, Number 159 (Thursday, August 16, 2001)]
[Rules and Regulations]
[Pages 43054-43064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20262]



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Part III





Environmental Protection Agency





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40 CFR Part 261



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

  Federal Register / Vol. 66, No. 159 / Thursday, August 16, 2001 / 
Rules and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-7025-3]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is granting a 
petition submitted by Eastman Chemical Corporation--Texas Operations 
(Eastman Chemical) to exclude from hazardous waste control (or delist) 
a certain solid waste. This final rule responds to the petition 
submitted by Eastman Chemical to delist the dewatered wastewater 
treatment sludge on a ``generator specific'' basis from the lists of 
hazardous waste.
    After careful analysis, the EPA has concluded that the petitioned 
waste is not hazardous waste when disposed of in Subtitle D landfills. 
This exclusion applies to dewatered wastewater treatment sludge 
generated at Eastman Chemical's Longview, Texas facility. Accordingly, 
this final rule excludes the petitioned waste from the requirements of 
hazardous waste regulations under the Resource Conservation and 
Recovery Act (RCRA) when disposed of in Subtitle D landfills but 
imposes testing conditions to ensure that the future-generated wastes 
remain qualified for delisting.

EFFECTIVE DATE: August 16, 2001.

ADDRESSES: The public docket for this final rule is located at the U.S. 
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202, and is available for viewing in the EPA Freedom of 
Information Act review room on the 7th floor from 9:00 a.m. to 4:00 
p.m., Monday through Friday, excluding Federal holidays. Call (214) 
665-6444 for appointments. The reference number for this docket is ``F-
00-TXDEL-TXEASTMAN''. The public may copy material from any regulatory 
docket at no cost for the first 100 pages and at a cost of $0.15 per 
page for additional copies.

FOR FURTHER INFORMATION CONTACT: For general information, contact Bill 
Gallagher, at (214) 665-6775. For technical information concerning this 
document, contact Michelle Peace, U.S. Environmental Protection Agency, 
1445 Ross Avenue, Dallas, Texas, (214) 665-7430.

SUPPLEMENTARY INFORMATION: The information in this section is organized 
as follows:

I. Overview Information
    A. What action is EPA finalizing?
    B. Why is EPA approving this delisting?
    C. What are the limits of this exclusion?
    D. How will Eastman Chemical manage the waste if it is delisted?
    E. When is the final delisting exclusion effective?
    F. How does this final rule affect states?
II. Background
    A. What is a ``delisting'?
    B. What regulations allow facilities to delist a waste?
    C. What information must the generator supply?
III. EPA's Evaluation of the Waste Data
    A. What waste did Eastman Chemical petition EPA to delist?
    B. How much waste did Eastman Chemical propose to delist?
    C. How did Eastman Chemical sample and analyze the waste data in 
this petition?
IV. Public Comments Received on the Proposed Exclusion
    A. Who submitted comments on the proposed rule?
    B. Request for clarification of preamble language and provisions 
in Table 1 of Appendix IX of Part 261.
    C. Comments on the Delisting Risk Assessment Software.

I. Overview Information

A. What Action Is EPA Finalizing?

    The EPA is finalizing:
    (1) the decision to grant Eastman's petition to have its wastewater 
treatment sludge excluded, or delisted, from the definition of a 
hazardous waste, subject to certain continued verification and 
monitoring conditions; and
    (2) to use the Delisting Risk Assessment Software to evaluate the 
potential impact of the petitioned waste on human health and the 
environment. The Agency used this model to predict the concentration of 
hazardous constituents released from the petitioned waste, once it is 
disposed.
    After evaluating the petition, EPA proposed, on December 4, 2000 to 
exclude the Eastman Chemical waste from the lists of hazardous wastes 
under Secs. 261.31 and 261.32 (see 65 FR 75637, December 4, 2000)

B. Why Is EPA Approving This Delisting?

    Eastman's petition requests a delisting for listed hazardous 
wastes. Eastman does not believe that the petitioned waste meets the 
criteria for which EPA listed it. Eastman also believes no additional 
constituents or factors could cause the waste to be hazardous. EPA's 
review of this petition included consideration of the original listing 
criteria, and the additional factors required by the Hazardous and 
Solid Waste Amendments of 1984 (HSWA). See section 3001(f) of RCRA, 42 
U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4). In making the final 
delisting determination, EPA evaluated the petitioned waste against the 
listing criteria and factors cited in Secs. 261.11(a)(2) and (a)(3). 
Based on this review, the EPA agrees with the petitioner that the waste 
is nonhazardous with respect to the original listing criteria. (If the 
EPA had found, based on this review, that the waste remained hazardous 
based on the factors for which the waste were originally listed, EPA 
would have proposed to deny the petition.) The EPA evaluated the waste 
with respect to other factors or criteria to assess whether there is a 
reasonable basis to believe that such additional factors could cause 
the waste to be hazardous. The EPA considered whether the waste is 
acutely toxic, the concentration of the constituents in the waste, 
their tendency to migrate and to bioaccumulate, their persistence in 
the environment once released from the waste, plausible and specific 
types of management of the petitioned waste, the quantities of waste 
generated, and waste variability. The EPA believes that the petitioned 
waste does not meet these criteria. EPA's final decision to delist 
waste from Eastman's facility is based on the information submitted in 
support of this rule, i.e., descriptions of the waste water treatment 
system, incinerator, and analytical data from the Longview facility.

C. What Are the Limits of This Exclusion?

    This exclusion applies to the waste described in the petition only 
if the requirements described in Table 1 of part 261, Appendix IX and 
the conditions contained herein are satisfied. The maximum annual 
volume of the dewatered wastewater treatment sludge is 82,100 cubic 
yards.

D. How Will Eastman Chemical Manage the Waste if It Is Delisted?

    Eastman currently disposes of the petitioned waste (wastewater 
treatment sludge) generated at its facility in an on-site, state 
permitted solid waste landfill after the sludge has been incinerated. 
The ash from the incineration process was delisted by EPA in June 1996. 
As a delisted material, it will meet the criteria for disposal in a 
Subtitle D landfill without incineration.
    The incinerator is a RCRA Subtitle C regulated unit permitted by 
the Texas Natural Resource Conservation

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Commission. This final decision will not affect the current regulatory 
controls on the incineration unit.

E. When Is the Final Delisting Exclusion Effective?

    This rule is effective August 16, 2001. The Hazardous and Solid 
Waste Amendments of 1984 amended Section 3010 of RCRA to allow rules to 
become effective in less than six months when the regulated community 
does not need the six-month period to come into compliance. That is the 
case here because this rule reduces, rather than increases, the 
existing requirements for persons generating hazardous wastes. These 
reasons also provide a basis for making this rule effective 
immediately, upon publication, under the Administrative Procedure Act, 
pursuant to 5 U.S.C. 553(d).

F. How Does This Final Rule Affect States?

    Because EPA is issuing this exclusion under the Federal RCRA 
delisting program, only states subject to Federal RCRA delisting 
provisions would be affected. This would exclude two categories of 
States: States having a dual system that includes Federal RCRA 
requirements and their own requirements, and States who have received 
our authorization to make their own delisting decisions.
    Here are the details: We allow states to impose their own non-RCRA 
regulatory requirements that are more stringent than EPA's, under 
section 3009 of RCRA. These more stringent requirements may include a 
provision that prohibits a Federally issued exclusion from taking 
effect in the State. Because a dual system (that is, both Federal 
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's 
waste, we urge petitioners to contact the State regulatory authority to 
establish the status of their wastes under the State law.
    EPA has also authorized some States (for example, Louisiana, 
Georgia, Illinois) to administer a delisting program in place of the 
Federal program, that is, to make State delisting decisions. Therefore, 
this exclusion does not apply in those authorized States. If Eastman 
Chemical transports the petitioned waste to or manages the waste in any 
State with delisting authorization, Eastman Chemical must obtain 
delisting authorization from that State before they can manage the 
waste as nonhazardous in the State.

II. Background

A. What Is a Delisting Petition?

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

B. What Regulations Allow Facilities To Delist a Waste?

    Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to 
remove their wastes from hazardous waste control by excluding them from 
the lists of hazardous wastes contained in Secs. 261.31 and 261.32. 
Specifically, Sec. 260.20 allows any person to petition the 
Administrator to modify or revoke any provision of Parts 260 through 
266, 268 and 273 of Title 40 of the Code of Federal Regulations. 
Section 260.22 provides generators the opportunity to petition the 
Administrator to exclude a waste on a ``generator-specific'' basis from 
the hazardous waste lists.

C. What Information Must the Generator Supply?

    Petitioners must provide sufficient information to EPA to allow the 
EPA to determine that the waste to be excluded does not meet any of the 
criteria under which the waste was listed as a hazardous waste. In 
addition, the Administrator must determine, where he/she has a 
reasonable basis to believe that factors (including additional 
constituents) other than those for which the waste was listed could 
cause the waste to be a hazardous waste, that such factors do not 
warrant retaining the waste as a hazardous waste.

III. EPA's Evaluation of the Waste Data

A. What Waste Did Eastman Chemical Petition EPA To Delist?

    On February 4, 2000, Eastman petitioned the EPA to exclude from the 
lists of hazardous waste contained in Secs. 261.31 and 261.32, a waste 
by-product (dewatered sludge from the wastewater treatment plant) which 
falls under the classification of listed waste because of the ``derived 
from'' rule in RCRA 40 CFR 261.3(c)(2)(i). Specifically, in its 
petition, Eastman Chemical Company, Texas Operations, located in 
Longview, Texas, requested that EPA grant an exclusion for 82,100 cubic 
yards per year of dewatered sludge resulting from its hazardous waste 
treatment process. The resulting waste is listed, in accordance with 
Sec. 261.3(c)(2)(i) (i.e., the ``derived from'' rule). The waste codes 
of the constituents of concern are EPA Hazardous Waste Nos. F001, F002, 
F003, F005, K009, K010, U001, U002, U028, U031, U069, U088, U112, U115, 
U117, U122, U140, U147, U154, U159, U161, U220, U226, U239 and U359. 
Table 1 lists the constituents of concern for these waste codes.

      Table 1.--Hazardous Waste Codes Associated With Waste Streams
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          Waste code               Basis for characteristics/listing
------------------------------------------------------------------------
F001--Spent halogented         Tetrachloroethylene, methylene chloride,
 solvents used in degreasing.   trichloroethylene, 1,1,1-
                                trichloroethane, carbon tetrachloride,
                                chlorinated fluorocarbons
F002--Spent halogented         Tetrachloroethylene, methylene chloride,
 solvents.                      trichloroethylene, 1,1,1-
                                trichloroethane, 1,1,2-trichloroethane,
                                chlorobenzene, 1,1,2-trichloro-1,2,2-
                                trichlorofluoroethane, ortho-
                                dichlorobenzene, trichlorofluoromethane
F003--Spent non-halogented     Not applicable
 solvents.
F005--Spent non-halogented     Toluene, methyl ethyl ketone, carbon
 solvents.                      disulfide, isobutanol, pyridine, 2-
                                ethoxyethanol, benzene, 2-nitropropane
K009--Distillation bottoms     Chloroform, formaldehyde, methylene
 from the production of         chloride, methyl chloride, paraldehyde,
 acetaldehyde from ethylene.    formic acid
K010--Distillation side cuts   Chloroform, formaldehyde, methylene
 from the production of         chloride, methyl chloride, paraldehyde,
 acetaldehyde from ethylene.    formic acid, chloroacetaldehyde
U001.........................  Acetaldehyde
U002.........................  Acetone
U028.........................  Bis(2-ethylhexyl) phthalate
U031.........................  n-Butyl alcohol
U069.........................  Dibutyl phthalate

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U088.........................  Di-ethyl phthalate
U112.........................  Ethyl acetate
U115.........................  Ethylene Oxide
U117.........................  Ethyl ether
U122.........................  Formaldehyde
U140.........................  Isobutyl alcohol
U147.........................  Maleic anhydride
U154.........................  Methanol
U159.........................  Methyl ethyl ketone
U161.........................  Methyl isobutyl ketone
U220.........................  Toluene
U226.........................  1,1,1 Trichloroethane (Methyl chloroform)
U239.........................  Xylene
U359.........................  Ethylene Glycol monoethyl ether
------------------------------------------------------------------------

B. How Much Waste Did Eastman Chemical Propose To Delist?

    Specifically, in its petition, Eastman Chemical requested that EPA 
grant a standard exclusion for 82,100 cubic yards of dewatered 
wastewater treatment sludge generated per calender year.

C. How Did Eastman Chemical Sample and Analyze the Waste Data in This 
Petition?

    To support its petition, Eastman submitted:
    (1) descriptions of its waste water treatment system associated 
with petitioned wastes;
    (2) results of the total constituent list for 40 CFR Part 264 
Appendix IX volatiles, semivolatiles, and metals except pesticides, 
herbicides, and PCBs;
    (3) results of the constituent list for Appendix IX on Toxicity 
Characteristic Leaching Procedure (TCLP) extract for volatiles, 
semivolatiles, and metals;
    (4) results for reactive sulfide,
    (5) results for reactive cyanide;
    (6) results for pH;
    (7) results of the metals concentrations using multiple pH 
extraction fluids;
    (8) information and results from testing of the fluidized bed 
incinerator's compliance testing and
    (9) results from oil and grease analysis.

IV. Public Comments Received on the Proposed Exclusion

A. Who Submitted Comments on the Proposed Rule?

    The EPA received public comments on December 4, 2000, proposal from 
three interested parties, General Motors, Delphi Automotive, and 
Eastman Chemical Company.

B. Request for Clarification of Preamble Language and Provisions in 
Table 1 of Appendix IX of Part 261.

Eastman comments that the language in the preamble of the rules may be 
interpreted more strictly than the language in the exclusion.
    For purposes of compliance with the exclusion in Table 1 of 
Appendix 1 of part 261, if Eastman significantly changes the process 
which generate(s) the waste(s) and which may or could affect the 
composition or type waste(s) generated as established under Condition 
(1) (by illustration, but not limitation, change in equipment or 
operating conditions of the treatment process). Eastman must (A) notify 
the EPA in writing of the change and (B) may no longer handle or manage 
the waste generated from the new process as nonhazardous until Eastman 
has demonstrated through testing the waste meets the delisting levels 
set in Condition (1) and (C) Eastman has received written approval to 
begin managing the wastes as non-hazardous from EPA. The Agency will 
revise Condition 4 of Table 1 of Appendix IX of part 261 to reflect 
this change.
Eastman also comments that the text in Item 1 of Table 1 could be 
misinterpreted.
    There is a typo in Item 1 of Table 1 (65 FR 75649, December 4, 
2000). The delisting level of 2-butanone is listed as 42.8 but should 
be 48.2 in accordance with Table III of the preamble. The Agency has 
rechecked the values from the Delisting Risk Assessment Software (DRAS) 
and notes the correct concentration limit is 42.8 mg/l for 2-butanone.

C. Comments on the Delisting Risk Assessment Software

Delphi Automotive generally supports the Eastman Chemical Company's 
Delisting Petition to delist its sludge but has extensive comments on 
the Delisting Risk Assessment Software. Delphi comments that the ease 
of use and simplicity for inputting two variables into the model has 
resulted in a model that is not designed to be a site-specific model 
but rather is waste generator specific. Hence, any site specific 
factors such as hydrogeology, climate, ecology, population density, 
etc. cannot be incorporated as modifiers of release or risk estimates. 
This leaves the model inflexible, not representative, and leads to an 
overestimation of releases and risk. Delphi goes on to identify 
concerns and questions regarding the Delisting Risk Assessment model. 
Delphi and GM list their concerns in the areas of (1) assumptions 
regarding the landfill; minimal cover; criteria applied regarding risk 
levels; the TCLP; unlikely risk scenarios; undocumented sensitivity 
analysis; issues surrounding Nickel; and notice and review issues.
    Information on the Risk and Hazard Assessment can be found in 
Chapter 4 of the DTSD. A discussion of criteria and the method for 
quantifying of risk is provided in Chapter 4.
    The Delisting Program in its history has never focused on site-
specific conditions. It has since its inception been a program 
specifically for waste generators. A review of the 40 CFR 260.22 
indicates that these are petitions to amend part 261 to exclude a waste 
produced at a particular facility. The Agency is not currently using 
the model to predict site-specific results. Since disposal of the 
delisted waste may occur at any landfill in the United States, site-
specific considerations are not usually given. The DRAS model is based 
on

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national averages of the site specific factors and is intended to model 
a reasonable worst case scenario for disposal.
    The Agency continues to review chemical-specific parameter data. 
Where appropriate, these data will be incorporated into the DRAS 
analyses. However, as explained above, in delisting analyses, site 
specific characteristics (beyond waste constituent concentration and 
volume) are not incorporated into analyses. Default values are given 
for many parameters used in risk. The Agency can not fully evaluate how 
release mechanisms and exposure scenarios may be impacted because the 
final disposal location remains undefined. See Tenneco Automotive 
Proposed Rule, 66 FR 24088, May 11, 2001 and the proposed Rule for 
Bekaert Steel Corporation in Rogers, AR, 61 FR 32748, June 25, 1996.
Delphi comments that the DRAS assumes that landfill is unlined and that 
leaching occurs from the beginning which is counter to performance 
standard and use of liners, covers & slurry walls. The assumption of no 
liner is not consistent with CMTP which assumes a liner. The DRAS model 
should allow for the option of including a liner and should use 
Subtitle D landfill characteristics.
    There are existing solid waste landfills which have no liner. Over 
time, liners also fail, delistings do not currently have an expiration 
date, therefore it is reasonable to consider scenarios for liner 
failure or that no liner exists. After a delisting has been granted, 
the Agency does not designate a specific landfill where the waste may 
be disposed. Therefore, the Agency has assumed a reasonable worst case 
scenario of no liner.
The DRAS assumes minimal cover which increases volatilization and 
particulate emission estimates which may not be reasonable.
    Since disposal of a delisted material may occur in any unauthorized 
State, we must evaluate whether a State may or may not have regulatory 
requirements for daily cover. Regulations requiring daily cover on 
municipal landfills do not necessarily apply to industrial solid waste 
landfills. Furthermore, violations do occur. The worst case scenario 
must consider that the minimal requirements for daily cover exists.
General Motors and Delphi comments that the terms used in the DRAS 
should be more clearly defined. Does the term Cw for waste 
contamination account for the total mass of contamination in the waste 
or only that portion that may enter the aqueous phase and be 
transported into the unsaturated zone and/or the leachable portion?
    All terms and equations used in the Delisting Risk Assessment 
Software (DRAS) program are discussed in the Delisting Technical 
Support Document (DTSD). All abbreviations, acronyms, and variables are 
listed in Chapter 1, pages x-xx of the DTSD. The DTSD is updated to 
reflect revisions and modifications to risk algorithms and methodology. 
The Agency encourages all users and reviewers to comment on the 
technical support documentation and continues to improve the clarity 
and transparency of the DTSD. The term Cw is not used in the document. 
Without specific information to the page location/screen location of 
the term referenced in the question above, no further response can be 
provided.
Does a Hazard Index of greater than 1 mean that the waste cannot be 
delisted?
    A Hazard Index (HI) of 1 does not mean that the waste cannot be 
delisted, but that a more thorough evaluation of the waste will be 
necessary. In cases where the HI exceeds one for the entire waste, the 
Agency will then go on to evaluate the target organ for the critical 
effect of those chemicals contributing to the total HI. In some cases, 
the hazards associated with various chemicals in the waste result from 
effects to the same target organ, and are indeed additive. In other 
cases, the hazards of different chemicals impact different target 
organs, and are not additive, in which case the HI is lowered 
accordingly. The DRAS automatically assumes the conservative approach; 
summing all hazards to calculate the HI.
What criteria determine whether the allowable leachate concentration is 
set by SDWA MCL, DRAS calculation, treatment technology or toxicity 
characteristic level? Are some levels below background?
    The allowable level is the most conservative of the DRAS 
calculations, a calculation based on the Safe Drinking Water Act 
Maximum Contaminant Level (MCL) or the toxicity characteristic level. 
Technology based treatment standards are not considered. The exception 
to this is the level for arsenic which is frequently calculated based 
on the concentration allowed by the MCL.
Does EPA policy require that MCL or SW criteria be met? Does this 
policy apply at all downgradient distances or just those corresponding 
to the DAF?
    Groundwater must meet MCL criteria but not surface water criteria. 
The DAF is used to calculate the concentration in the groundwater at a 
well a set distance downgradient. This distance was based on the 
results of a survey which identified the distance to the closest 
drinking water wells located near solid waste landfills throughout the 
country.
The pH of a landfill is generally higher than the pH of the extraction 
fluid used in the TCLP which affects the leachability of the metals.
    The leachability of this waste was measured using three different 
extraction fluids representing a range of pH values. The pH values 
evaluated in this petition ranged from pH 4.93, 7.0, and 10.1. This is 
a fairly new piece of information requested by the Agency to evaluate 
whether the waste leachability will be significantly affected by 
changes in the pH environment.
The duration of leaching 18 min or 18 hr. may over or underestimate the 
leachability of some constituents. The Toxicity Characteristic Leaching 
Procedure (TCLP) does not account for variations in time to equilibrium 
for different species. The TCLP under predicts the maximum 
concentration of some anions and does not account for a variety of 
processes that can affect leachate quality, quantity and migration.
    For regulatory purposes, the TCLP must be performed in 18 
 2 hours. Eighteen hours is theoretically the residence 
time the aqueous phase remains in contact with the solid phase as it 
percolates through the waste in a landfill scenario. Assuming the data 
are being used for other purposes there is still no logical basis for 
decreasing the leaching time, since any lesser leaching time will 
generally under estimate the potential constituent concentrations.
The Agency should verify if the TCLP accounts for Dissolved Oxygen 
Content (DOC) in leachate which affects mobility of metals in the 
aquifer.
    The TCLP does not account for site-specific conditions such as 
conductivity, pH, dissolved oxygen, and total dissolved solids. It is 
to be anticipated that no test methodology will be universally 
appropriate in all circumstances and will be varied based upon discrete 
site-specific conditions as was anticipated by the rule promulgating 
revisions to the TCLP. See, 55 FR 11798 (March 29, 1990) and

[[Page 43058]]

the Reynolds Metals Delisting Repeal 62 FR 41005 (July 31, 1997).
It may be appropriate for the Agency to consider data from the SPLP.
    The Agency would consider any additional data that the petitioner 
chooses to submit. At this time the Agency requires leach testing for 
stabilized waste at 3 different pHs. The Agency also evaluates data 
from the Multiple Extraction Procedure (MEP). During the development of 
the Sampling and Analysis Plan for this delisting petition, the Agency 
and petitioner discussed which analytical methods were to be used and 
the approach for adequate characterization of the waste. The TCLP and 
testing at 3 different pHs were deemed appropriate analyses for 
characterizing this waste.
Several assumptions used in the DRAS model are unlikely and 
unreasonable: (1) A receptor lives and works at a single location 100 m 
downgradient and is exposed 350 days/yr; (2) Individuals are exposed to 
the 90th percentile level for all paths; (3) All media flow toward the 
receptor; (4) The landfill volume and conditions from 1987 is still 
valid; (5) The waste is placed uniformly at great depth over the whole 
landfill; (6) Only the most sensitive pathway for each constituent is 
selected which is an unlikely scenario; (7) First order decay applies 
although processes of oxidation, hydrolysis and biodegredation are not 
considered separately; (8) Transformation rate may not be reasonable 
for biological processes; (9) Fate and leaching estimates should 
include Kow, pKa, Henry's Law and potential for biological 
transformation; (10) All streams are fishable and representative; and 
(11) Nickel has a fish BCF of 307 which is unsupported by peer review 
publications and EPA's own documents. The DRAS model is intended to 
model a reasonable worst case model and is based on national averages 
of these factors. This is the same assumption used for the EPACML.
    The DRAS employs risk assessment default parameters that are 
accepted throughout the Agency in risk analyses (i.e., residential 
exposure @ 350 days/yr, selection of the 90th percentile). These 
default standards are described and listed in Appendix A of the DTSD.
    The DRAS does employ a conservative approach to exposure assessment 
by assuming the receptor may be exposed to both the most sensitive 
groundwater pathway and the most sensitive surface exposure pathway. To 
maximize the impact of the waste, the model assumes uniform placement 
of the waste and selects the most sensitive pathway for each 
constituent. The Agency has no way of knowing that this situation will 
not occur and therefore deems it prudent to protect for this condition 
by adding risks. Again, the Agency has no way of knowing the direction 
of media flow and must assume that all media flow may move toward the 
receptor. The Agency has no data to indicate that the landfill volume 
data and other data from the 1987 landfill survey report is not valid. 
When updated data are available, they will be incorporated into the 
analyses.
    The groundwater fate and transport model used by the Agency to 
determine first order decay and other processes is the EPA's Composite 
Model for Leachate Migration with Transformation Products (EPACMTP). 
This model has been peer reviewed and received an excellent review from 
the Science Advisory Board (SAB). EPA has proposed use of this SAB-
reviewed model and no convincing comments to the contrary have been 
received. The bioconcentration factor (BCF) for nickel has been revised 
from 307 to 78. The revised nickel BCF will be incorporated into the 
upcoming DRAS version 2.0.
GM and Delphi both comment that the model does not account for the 
uncertainty or sensitivity estimate on this exposure. Without a 
sensitivity analysis it is impossible to determine if a single pathway 
drives the risk. If data for most sensitive parameter is uncertain or 
limited, confidence in the result will be poor.
    The DRAS provides the forward-calculated risk level and back-
calculated allowable waste concentration for each exposure pathway, 
thereby permitting the user to determine which pathway drives the risk 
for a given chemical. These analyses are currently provided for the 
user by the DRAS program on the Chemical-Specific Results screen.
What is the effect of assuming a DAF of 18?
    The Dilution Attenuation Factor (DAF) of 18 is a conservative DAF 
determined by the EPACMTP fate and transport model for the landfill 
waste management scenario. The DAF of 18 represents the class of 
organic chemicals for non-degrading, non-sorbing, characteristics. When 
creating a chemical to add to the DRAS chemical library for use in DRAS 
analyses, we recommend using a conservative value.
What is the sensitivity of using the 50th percentile on release and 
risk estimates?
    The DRAS assessment uses high end estimates from the 90th 
percentile to select the best available data for each parameter. As 
mentioned in 65 FR 58019 (September 27, 2000), some EPA risk 
assessments may select the 50th percentile of the best available to 
represent typical values. The DRAS assessment always defaults to high-
end values.
The BCF of 307 for nickel in fish is unsupported in EPA's own 
documents. Nickel does not bioaccumulate due to incomplete adsorption 
and rapid excretion. Literature values are much less. BCF should not be 
used for predicting chronic toxicity. Some organs can regulate internal 
concentrations. Ni+2, not the parent, is persistent and 
bioavailable.
    The Bioconcentration Factor (BCF) for nickel has been revised to 78 
and will be incorporated into DRAS version 2.0. This value is based on 
the geometric mean of 3 laboratory values (100, 100, 47). Further 
background on the studies used to derive these BCFs is available in the 
document entitled ``Screening Level Ecological Risk Assessment Protocol 
for Hazardous Waste Combustion Facilities'' (EPA530-D-99-001). However, 
neither BCF value (307 or 78) will have an impact on the delisting 
levels for nickel as the delisting level is driven by the groundwater 
ingestion pathway. In the DRAS risk analyses, nickel does not 
constitute an appreciable risk via surface pathways including fish 
ingestion in which the BCF is used to calculate risk.
How does the model distinguish metals that are important for some 
animals?
    Delisting levels for metals far exceed any micronutrient levels. 
These micronutrient levels are accounted for in the delisting levels 
but the excess of the delisting level is not significant enough to pose 
a risk to the animals.
Current science suggests that the skin and respiratory tract are 
targets for soluble nickel salts yet the model literature states that 
the target organs and critical effects are decreased organ and or body 
weights.
    The oral Reference Dose (RfD) is based on the assumption that 
thresholds exist for certain toxic effects such as cellular necrosis. 
It is expressed in units of mg/kg-day. Ambrose, et al. in ``Long-term 
Toxicologic Assessment of Nickel in Rats and Dogs'' \1\ reported the 
results of a 2-year feeding study using rats given 0, 100, 1000 or 2500 
ppm nickel (estimated as 0, 5, 50 and 125 mg Ni/

[[Page 43059]]

kg bw) in the diet. Clinical signs of toxicity, such as lethargy, 
ataxia, irregular breathing, cool body temperature, salivation and 
discolored extremities, were seen primarily in the 100 mg/kg/day group; 
these signs were less severe in the 35 mg/kg/day group. Based on the 
results obtained in this study, the 5 mg/kg/day nickel dose was a ``no 
observed adverse effect levels'' (NOAEL), whereas 35 mg/kg/day was a 
``lowest observed adverse effects levels'' (LOAEL) for decreased body 
and organ weights. For further information, please refer to the 
Agency's IRIS database.
---------------------------------------------------------------------------

    \1\ Ambrose, A.M., P.S. Larson, J.R. Borzelleca and G.R. 
Hennigar, Jr. 1976. Long-term toxicologic Assessment of Nickel in 
Rats and Dogs. J. Food Sci. Technol. 13: 181-187.
---------------------------------------------------------------------------

In aquatic environs, much of the nickel present as ionic or stable 
organic complexes. Hence much of the nickel is insoluble with minimal 
bioavailability. Also, soil which contains high organic matter will 
limit nickel's mobility. Are maximum permissible levels set below 
background? Background levels for nickel are approximately 3.3 ppb 
freshwater; 2.1 ppb groundwater; 4 to 30 mg/kg soil.
    The Agency agrees that some nickel may be insoluble, have minimal 
bioavailability, and have mobility dependent on organic content. 
However as explained above, in delisting analyses, site specific 
characteristics (beyond waste constituent concentration and volume) are 
not incorporated into analyses. Default values are given for many 
parameters used in risk analyses including the organic content of 
fishable waters. The Agency has no way of knowing what streams may be 
impacted and, therefore, establishes a conservative estimate of 
pertinent variables.
The DRAS is complex and EPA must explain the models and risk processes 
used in establishing regulatory limits.
    Attached to the Delisting Risk Assessment Software is a Technical 
Support Document which explains the risk algorithms and documentation 
of the decisions made in development of the model. Publication costs 
prohibit the inclusion of all this information into the Federal 
Register notice but it is readily available in both the Technical 
Support Document and at the Region 6 Delisting page (www.epa.gov/earth1/r6/pd-o/pd-o.htm). However, the Agency believes that the 
Delisting Risk Assessment Software is no more complex than use of the 
EPACML for delisting, just because the calculations have been 
computerized make them no more difficult to understand than the EPACML. 
Similar regression models were developed for the DRAS. The risk 
pathways for surface water and air volatilization are evaluated by the 
same equations used previously in the delisting program. And finally, 
the pathways for showering and dermal contact are equations which are 
commonly used in risk assessments performed for cleanups and site 
assessments under the Comprehensive Environmental Response, 
Compensation and Liability Act (CERCLA) commonly known as Superfund and 
other programs.
EPA should confirm stoichiometry, speciation charge, formula weight, 
equilibrium and enthalpy estimates with regard to metal and organic 
ligands as risks from metal ion concentrations may be overestimated.
    The Agency continues to review chemical-specific parameter data. 
Where appropriate, these data will be incorporated into the DRAS 
analyses. Currently, MINTEQA2 is used in the EPACMTP. As refinements to 
metals speciation with regards to groundwater fate and transport become 
available, they will be incorporated into the EPACMTP model. However, 
as explained above, in delisting analyses, site specific 
characteristics (beyond waste constituent concentration and volume) are 
not incorporated into analyses. Default values are given for many 
parameters used in risk. The Agency has no way of knowing how release 
mechanisms and exposure scenarios may be impacted given the final 
disposal location remains undefined.
The model may estimate fate and transport concentration that exceed 
water solubility.
    It is assumed that this comment refers to the groundwater fate and 
transport model used by DRAS (i.e., the EPACMTP). Indeed, if waste 
concentration exceeds soil saturation, free form conditions may occur 
and the assumptions of the EPACMTP may be compromised. Therefore, soil 
saturation values have been incorporated into DRAS and the program will 
notify the user if a waste concentrations exceed soil saturation 
concentrations. Ambient water concentrations may be influenced by more 
than chemical solubility (e.g., organic content). Total concentrations 
that exceed 1% are also highlighted and flagged within the DRAS so that 
further evaluation can be performed.
The use of the NOAEL in Rfd calculations has been challenged by the 
Science Advisory Board (SAB). The dose response relationship and the 
consistency in response level are not identified. Regulatory limits are 
based more on experimental exposure than on biological relevance.
    The EPA still uses the no observed adverse effect levels (NOAEL) in 
the development of a reference dose (RfD). Until such time that the 
Agency redefines RfD methodology, delisting will continue to determine 
hazards based on RfDs recommended by EPA's IRIS (Integrated Risk 
Information System) database. The Agency continues to support the use 
of RfDs in delisting determinations in such a manner consistent with 
EPA risk assessment methodology. The EPA risk assessors and EPA's 
Office of Research and Development scientists who have peer reviewed 
the DRAS have not questioned the method in which RfDs are employed in 
the DRAS analyses.
    GM and Delphi both comment that model should be peer reviewed and 
the public should have the formal opportunity to provide comments.
    The model has been peer reviewed by EPA risk assessors and EPA's 
Office of Research and Development scientists. The public has the 
opportunity to comment on the DRAS model each time a delisting is 
proposed which is based on the DRAS model. The Agency is currently 
using the same level of public review used by the delisting program in 
the use of new models. The same notice procedures were provided for the 
use of the EPA Composite Model for Landfills in 1991. The model's use 
as modified for the delisting program was promulgated in conjunction 
with its use in the Reynolds Metals Delisting petition See, 56 FR 32993 
(July 18, 1991).
    GM summarizes its comments on the DRAS by stating that (1) EPA is 
proposing significant changes to the methodology it uses to evaluate 
delisting petitions. It appears the changes would apply to all future 
delisting petitions. (2) The proposed changes are complex. Not enough 
information has been provided about the various assumptions, 
methodologies, and interactions between variables used by EPA in its 
model. (3) It appears that the proposed changes would apply in all EPA 
Regions, (4) The proposed changes may include elements of the still-
draft, unpromulgated, and controversial HWIR waste model. It is 
inappropriate and contrary to law and the Administrative Procedures Act 
to use a model prior to

[[Page 43060]]

public notice and comment. (5) No Federal Register notice has been 
given to clearly indicate the EPA plans to change the way it reviews 
and evaluates delisting petitions. Instead, references to the changes 
in the model have been made as part of proposals to delist specific 
waste streams. (6) The model should be peer reviewed and if EPA is 
changing the model it uses to evaluate delisting petitions (from the 
EPACML to the DRAS model) USEPA should provide specific and clear 
public notification of this intent. The risk assessment methodology for 
delisting that has been used since 1991 should still apply until public 
review period is completed.
    The EPA is following the same notice provided for changing from the 
VHS model to the EPA Composite Model for Landfills (EPACML). See 56 FR 
32993, July 18, 1991. The public has the opportunity to comment on the 
DRAS model each time a delisting is proposed which is based on the DRAS 
model. General Motors has not stated any reason why the DRAS model is 
not appropriate for use in evaluating the risk associated with the 
Tenneco Delisting.
    General Motors states that use of model with public review and 
comment is a violation of the Administrative Procedures Act and law. 
Opportunity for public review and comment is provided for each 
delisting petition. Comments are requested for each delisting decision 
regarding the decision to delist the waste and use of a model to assess 
the risk posed to human health and the environment. Each time the model 
is used, just as with the use of the EPACML, the public and interested 
stakeholders can comment on the appropriateness of the use. In fact, 
each proposed rule for approving a delisting proposes the use of a 
model in the evaluation of risk and asks for comment. Examples can be 
seen in the Federal Register for the EPACML as well as the DRAS. See, 
56 FR 32993, (July 18, 1991), 64 FR 44867 (August 18, 1999), and 65 FR 
75641, (December 4, 2000). Any petitioner or interested party may 
suggest more appropriate evaluation tools for predicting risk. Thus, 
EPA believes that adequate public notice has been provided and the APA 
has not been violated.

V. Regulatory Impact

    Under Executive Order 12866, EPA must conduct an ``assessment of 
the potential costs and benefits'' for all ``significant'' regulatory 
actions. The final 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 manage its waste as nonhazardous. There is no additional 
impact therefore, due to this final 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.

VI. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 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 which 
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 a small entities.
    This rule if promulgated, will not have an adverse economic impact 
on small entities since its effect would be to reduce the overall costs 
of EPA's hazardous waste regulations. Accordingly, I hereby certify 
that this 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.

VII. Paperwork Reduction Act

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

VIII. 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 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 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. The EPA 
finds that this final 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 final delisting 
does not establish any regulatory requirements for small governments 
and so does not require a small government agency plan under UMRA 
section 203.

IX. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of Congress and to the Comptroller General of the United 
States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, the Comptroller General of the United States prior to 
publication of the final rule in the Federal Register. This rule is not 
a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will become 
effective on the date of publication in the Federal Register.

X. Executive Order 12875

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a state, local, 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If

[[Page 43061]]

the mandate is unfunded, EPA must provide to the Office of Management 
and Budget a description of the extent of EPA's prior consultation with 
representatives of affected state, local, and tribal governments, the 
nature of their concerns, copies of written communications from the 
governments, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.'' This rule does not create a 
mandate on state, local or tribal governments. The rule does not impose 
any enforceable duties on these entities. Accordingly, the requirements 
of section 1(a) of Executive Order 12875 do not apply to this rule.

XI. Executive Order 13045

    The Executive Order 13045 is entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997). This order applies to any rule that EPA determines (1) is 
economically significant as defined under Executive Order 12866, and 
(2) the environmental health or safety risk addressed by the rule has a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This rule is 
not subject to Executive Order 13045 because this is not an 
economically significant regulatory action as defined by Executive 
Order 12866.

XII. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects or uniquely affects 
the communities of Indian tribal governments, and that imposes 
substantial direct compliance costs on those communities, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. If the mandate is 
unfunded, EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to meaningful and timely input'' in the 
development of regulatory policies on matters that significantly or 
uniquely affect their communities of Indian tribal governments. This 
rule does not significantly or uniquely affect the communities of 
Indian tribal governments. Accordingly, the requirements of section 
3(b) of Executive Order 13084 do not apply to this rule.

XIII. National Technology Transfer and Advancement Act

    Under section 12(d) if the National Technology Transfer and 
Advancement Act, the Agency is directed to use voluntary consensus 
standards in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, business practices, 
etc.) developed or adopted by voluntary consensus standard bodies. 
Where available and potentially applicable voluntary consensus 
standards are not used by EPA, the Act requires that Agency to provide 
Congress, through the OMB, an explanation of the reasons for not using 
such standards.
    This rule does not establish any new technical standards and thus, 
the Agency has no need to consider the use of voluntary consensus 
standards in developing this final rule.

Lists of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous Waste, Recycling, Reporting and 
recordkeeping requirements.

    Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).

    Dated: July 27, 2001.
Stephen Gilrein,
Acting Director of Multimedia Planning and Permitting Division.

    For the reasons set out in the preamble, 40 CFR part 261 is amended 
as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    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 Table 1, 2, and 3 of Appendix IX, part 261 add the following 
waste stream in alphabetical order by facility to read as follows:

Appendix IX--Wastes Excluded Under Secs. 260.20 and 260.22

                               Table 1.--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
               Facility                        Address                          Waste description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
Eastman Chemical Company.............  Longview, Texas........  Wastewater treatment sludge, (at a maximum
                                                                 generation of 82,100 cubic yards per calendar
                                                                 year) generated by Eastman (EPA Hazardous Waste
                                                                 Nos. F001, F002, F003, F005 generated at
                                                                 Eastman when disposed of in a Subtitle D
                                                                 landfill.
                                                                Eastman must implement a testing program that
                                                                 meets the following conditions for the
                                                                 exclusion to be valid:
                                                                (1) Delisting Levels: All concentrations for the
                                                                 following constituents must not exceed the
                                                                 following levels (mg/l). For the wastewater
                                                                 treatment sludge constituents must be measured
                                                                 in the waste leachate by the method specified
                                                                 in 40 CFR 261.24. Wastewater treatment sludge:
                                                                (i) Inorganic Constituents: Antimony-0.0515;
                                                                 Barium-7.30; Cobalt-2.25; Chromium-5.0; Lead-
                                                                 5.0; Mercury-0.0015; Nickel-2.83; Selenium-
                                                                 0.22; Silver-0.384; Vanadium-2.11; Zinc-28.0

[[Page 43062]]

 
                                                                (ii) Organic Constituents: Acenaphthene-1.25;
                                                                 Acetone--7.13; bis(2-ethylhexylphthalate--0.28;
                                                                 2-butanone--42.8; Chloroform--0.0099; Fluorene--
                                                                 0.55; Methanol-35.7; Methylene Chloride--0.486;
                                                                 naphthalene-0.0321.
                                                                (2) Waste Holding and Handling: If the
                                                                 concentrations of the sludge exceed the levels
                                                                 provided in Condition 1, then the sludge must
                                                                 be treated in the Fluidized Bed Incinerator
                                                                 (FBI) and meet the requirements of that
                                                                 September 25, 1996 delisting exclusion to be
                                                                 non-hazardous (as FBI ash). If the sludge meets
                                                                 the delisting levels provided in Condition 1,
                                                                 then it's non-hazardous (as sludge). If the
                                                                 waste water treatment sludge is not managed in
                                                                 the manner above, Eastman must manage it in
                                                                 accordance with applicable RCRA Subtitle C
                                                                 requirements. If the levels of constituents
                                                                 measured in the samples of the waste water
                                                                 treatment sludge do not exceed the levels set
                                                                 forth in Condition (1), then the waste is
                                                                 nonhazardous and may be managed and disposed of
                                                                 in accordance with all applicable solid waste
                                                                 regulations. During the verification period,
                                                                 Eastman must manage the waste in the FBI
                                                                 incinerator prior to disposal.
                                                                (3) Verification Testing Requirements: Eastman
                                                                 must perform sample collection and analyses,
                                                                 including quality control procedures, according
                                                                 to SW-846 methodologies. After completion of
                                                                 the initial verification period, Eastman may
                                                                 replace the testing required in Condition
                                                                 (3)(A) with the testing required in Condition
                                                                 (3)(B). Eastman must continue to test as
                                                                 specified in Condition (3)(A) until and unless
                                                                 notified by EPA in writing that testing in
                                                                 Condition (3)(A) may be replaced by Condition
                                                                 (3)(B).
                                                                (A) Initial Verification Testing: At quarterly
                                                                 intervals for one year after the final
                                                                 exclusion is granted, Eastman must collect and
                                                                 analyze composites of the wastewater treatment
                                                                 sludge for constituents listed in Condition
                                                                 (1).
                                                                (B) Subsequent Verification Testing: Following
                                                                 termination of the quarterly testing, Eastman
                                                                 must continue to test a representative
                                                                 composite sample for all constituents listed in
                                                                 Condition (1) on an annual basis (no later than
                                                                 twelve months after the final exclusion).
                                                                (4) Changes in Operating Conditions. If Eastman
                                                                 significantly changes the process which
                                                                 generate(s) the waste(s) and which may or could
                                                                 affect the composition or type of waste(s)
                                                                 generated as established under Condition (1)
                                                                 (by illustration, but not limitation, change in
                                                                 equipment or operating conditions of the
                                                                 treatment process or generation of volumes in
                                                                 excess 82,100 cubic yards of waste annually),
                                                                 Eastman must (A) notify the EPA in writing of
                                                                 the change and (B) may no longer handle or
                                                                 manage the waste generated from the new process
                                                                 as nonhazardous until Eastman has demonstrated
                                                                 through testing the waste meets the delisting
                                                                 levels set in Condition (1) and (C) Eastman has
                                                                 received written approval to begin managing the
                                                                 wastes as non-hazardous from EPA.
                                                                (5) Data Submittals. Eastman must submit or
                                                                 maintain, as applicable, the information
                                                                 described below. If Eastman fails to submit the
                                                                 required data within the specified time or
                                                                 maintain the required records on-site for the
                                                                 specified time, EPA, at its discretion, will
                                                                 consider this sufficient basis to reopen the
                                                                 exclusion as described in Condition (6).
                                                                 Eastman must:
                                                                (A) Submit the data obtained through Condition
                                                                 (3) to Mr. William Gallagher, Chief, Region 6
                                                                 Delisting Program, EPA, 1445 Ross Avenue,
                                                                 Dallas, Texas 75202-2733, Mail Code, (6PD-O)
                                                                 within the time specified.
                                                                (B) Compile records of operating conditions and
                                                                 analytical data from Condition (3), summarized,
                                                                 and maintained on-site for a minimum of five
                                                                 years.
                                                                (C) Furnish these records and data when EPA or
                                                                 the State of Texas request them for inspection.
                                                                (D) Send along with all data a signed copy of
                                                                 the following certification statement, to
                                                                 attest to the truth and accuracy of the data
                                                                 submitted:
                                                                (i) Under civil and criminal penalty of law for
                                                                 the making or submission of false or fraudulent
                                                                 statements or representations (pursuant to the
                                                                 applicable provisions of the Federal Code,
                                                                 which include, but may not be limited to, 18
                                                                 U.S.C. 1001 and 42 U.S.C. 6928), I certify that
                                                                 the information contained in or accompanying
                                                                 this document is true, accurate and complete.

[[Page 43063]]

 
                                                                (ii) 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.
                                                                (iii) If any of this information is determined
                                                                 by EPA in its sole discretion to be false,
                                                                 inaccurate or incomplete, and upon conveyance
                                                                 of this fact to the company, I recognize and
                                                                 agree that this exclusion of waste will be void
                                                                 as if it never had effect or to the extent
                                                                 directed by EPA and that the company will be
                                                                 liable for any actions taken in contravention
                                                                 of the company's RCRA and CERCLA obligations
                                                                 premised upon the company's reliance on the
                                                                 void exclusion.
                                                                (6) Reopener Language:
                                                                (A) If, anytime after disposal of the delisted
                                                                 waste, Eastman possesses or is otherwise made
                                                                 aware of any environmental data (including but
                                                                 not limited to leachate data or groundwater
                                                                 monitoring data) or any other data relevant to
                                                                 the delisted waste indicating that any
                                                                 constituent identified for the delisting
                                                                 verification testing is at level higher than
                                                                 the delisting level allowed by the Regional
                                                                 Administrator or his delegate in granting the
                                                                 petition, then the facility must report the
                                                                 data, in writing, to the Regional Administrator
                                                                 or his delegate within 10 days of first
                                                                 possessing or being made aware of that data.
                                                                (B) If the annual testing of the waste does not
                                                                 meet the delisting requirements in Condition
                                                                 (1), Eastman must report the data, in writing,
                                                                 to the Regional Administrator or his delegate
                                                                 within 10 days of first possessing or being
                                                                 made aware of that data.
                                                                (C) If Eastman fails to submit the information
                                                                 described in Conditions (5),(6)(A) or (6)(B) or
                                                                 if any other information is received from any
                                                                 source, the Regional Administrator or his
                                                                 delegate will make a preliminary determination
                                                                 as to whether the reported information requires
                                                                 Agency action to protect human health or the
                                                                 environment. Further action may include
                                                                 suspending, or revoking the exclusion, or other
                                                                 appropriate response necessary to protect human
                                                                 health and the environment.
                                                                (D) If the Regional Administrator or his
                                                                 delegate determines that the reported
                                                                 information does require Agency action, the
                                                                 Regional Administrator or his delegate will
                                                                 notify the facility in writing of the actions
                                                                 the Regional Administrator or his delegate
                                                                 believes are necessary to protect human health
                                                                 and the environment. The notice shall include a
                                                                 statement of the proposed action and a
                                                                 statement providing the facility with an
                                                                 opportunity to present information as to why
                                                                 the proposed Agency action is not necessary.
                                                                 The facility shall have 10 days from the date
                                                                 of the Regional Administrator or his delegate's
                                                                 notice to present such information.
                                                                (E) Following the receipt of information from
                                                                 the facility described in Condition (6)(D) or
                                                                 (if no information is presented under Condition
                                                                 (6)(D)) the initial receipt of information
                                                                 described in Conditions (5), (6)(A) or (6)(B),
                                                                 the Regional Administrator or his delegate will
                                                                 issue a final written determination describing
                                                                 the Agency actions that are necessary to
                                                                 protect human health or the environment. Any
                                                                 required action described in the Regional
                                                                 Administrator or his delegate's determination
                                                                 shall become effective immediately, unless the
                                                                 Regional Administrator or his delegate provides
                                                                 otherwise.
                                                                (7) Notification Requirements. Eastman must do
                                                                 following before transporting the delisted
                                                                 waste off-site: Failure to provide this
                                                                 notification will result in a violation of the
                                                                 delisting petition and a possible revocation of
                                                                 the exclusion.
                                                                (A) Provide a one-time written notification to
                                                                 any State Regulatory Agency to which or through
                                                                 which they will transport the delisted waste
                                                                 described above for disposal, 60 days before
                                                                 beginning such activities.
                                                                (B) Update the one-time written notification if
                                                                 they ship the delisted waste into a different
                                                                 disposal facility.
----------------------------------------------------------------------------------------------------------------


                                 Table 2.--Waste Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
               Facility                        Address                          Waste description
----------------------------------------------------------------------------------------------------------------
 
*                  *                *                  *                  *                  *
                                                        *
Eastman Chemical Company.............  Longview, Texas........  Wastewater treatment sludge, (at a maximum
                                                                 generation of 82,100 cubic yards per calendar
                                                                 year) (EPA Hazardous Waste Nos. K009, K010)
                                                                 generated at Eastman. Eastman must implement
                                                                 the testing program described in Table 1. Waste
                                                                 Excluded From Non-Specific Sources for the
                                                                 petition to be valid.
----------------------------------------------------------------------------------------------------------------


[[Page 43064]]


 Table 3.--Waste Excluded From Commercial Chemical Products, Off Specification Species, Container Residues, and
                                              Soil Residues Thereof
----------------------------------------------------------------------------------------------------------------
               Facility                        Address                          Waste description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
Eastman Chemical Company.............  Longview, Texas........  Wastewater treatment sludge, (at a maximum
                                                                 generation of 82,100 cubic yards per calendar
                                                                 year) generated by Eastman (EPA Hazardous Waste
                                                                 Nos. U001, U002, U028, U031, U069, U088, U112,
                                                                 U115, U117, U122, U140, U147, U154, U159, U161,
                                                                 U220, U226, U239, U359). Eastman must implement
                                                                 the testing program described in Table 1. Waste
                                                                 Excluded From Non-Specific Sources for the
                                                                 petition to be valid.
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 01-20262 Filed 8-15-01; 8:45 am]
BILLING CODE 6560-50-P