[Federal Register Volume 71, Number 30 (Tuesday, February 14, 2006)]
[Proposed Rules]
[Pages 7704-7712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1398]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW FRL-8031-5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

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SUMMARY: EPA is proposing to grant a petition submitted by Bayer 
Material Science LLC (Bayer) to exclude (or delist) a certain solid 
waste generated by its Baytown, Texas, facility from the lists of 
hazardous wastes.
    EPA used the Delisting Risk Assessment Software (DRAS) in the 
evaluation of the impact of the petitioned waste on human health and 
the environment.
    EPA bases its proposed decision to grant the petition on an 
evaluation of waste-specific information provided by the petitioner. 
This proposed decision, if finalized, would exclude the petitioned 
waste from the requirements of hazardous waste regulations under the 
Resource Conservation and Recovery Act (RCRA).
    If finalized, EPA would conclude that Bayer's petitioned waste, 
spent carbon, is non-hazardous. The spent carbon from the facility's 
waste water treatment plant, before treatment, would be listed under 
the hazardous waste codes K027, K104, K111, and K112. Long- and short-
term threats to human health and the environment from the spent carbon 
as generated are minimized.

DATES: EPA will accept comments until March 16, 2006. EPA will stamp 
comments received after the close of the comment period as late. These 
late comments may not be considered in formulating a final decision. 
Your requests for a hearing must reach EPA by March 1, 2006. The 
request must contain the information prescribed in 40 CFR 260.20(d) 
(hereinafter all CFR cites refer to 40 CFR unless otherwise stated).

ADDRESSES: Please send three copies of your comments. You should send 
two copies to the Chief, Corrective Action and Waste Minimization 
Section (6PD-C), Multimedia Planning and Permitting Division, U.S. 
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202. You should send a third copy to the Texas Commission on 
Environmental Quality, P.O. Box 13087, Austin, TX 78712. Identify your 
comments at the top with this regulatory docket number: R6-TXDEL-FY06-
Bayer-Spent Carbon. You may submit your comments electronically to 
Michelle Peace at [email protected]. You may also submit your 
comments through http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
    You should address requests for a hearing to Ben Banipal, Chief, 
Corrective Action and Waste Minimization Section (6PD-C), Multimedia 
Planning and Permitting Division, U.S. Environmental Protection Agency 
Region 6, 1445 Ross Avenue, Dallas, Texas 75202.

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

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


I. Overview Information
    A. What action is EPA proposing?
    B. Why is EPA proposing to approve this delisting?
    C. How will Bayer manage the waste if it is delisted?
    D. When would the proposed delisting exclusion be finalized?
    E. How would this action affect states?
II. Background
    A. What is the history of the delisting program?
    B. What is a delisting petition, and what does it require of a 
petitioner?
    C. What factors must EPA consider in deciding whether to grant a 
delisting petition?
III. EPA's Evaluation of the Waste Information and Data
    A. What waste did Bayer petition EPA to delist?
    B. Who is Bayer and what process do they use to generate the 
petition waste?
    C. What information did Bayer submit to support this petition?
    D. What were the results of Bayer's analysis?
    E. How did EPA evaluate the risk of delisting this waste?
    F. What did EPA conclude about Bayer's analysis?
    G. What other factors did EPA consider in its evaluation?
    H. What is EPA's evaluation of this delisting petition?
IV. Next Steps
    A. With what conditions must the petitioner comply?
    B. What happens, if Bayer violates the terms and conditions?
V. Public Comments
    A. How may I as an interested party submit comments?
    B. How may I review the docket or obtain copies of the proposed 
exclusion?
VI. Statutory and Executive Order Reviews

I. Overview Information

A. What action is EPA proposing?

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

B. Why is EPA proposing to approve this delisting?

    Bayer's petition requests a delisting for the spent carbon derived 
from the treatment of hazardous waste water listed as K027, K104, K111, 
and K112 be delisted. Bayer does not believe that the petitioned waste 
meets the criteria for which EPA listed it. Bayer also believes no 
additional constituents or factors could cause the waste to be 
hazardous. EPA's review of this petition included

[[Page 7705]]

consideration of the original listing criteria, and the additional 
factors required by the Hazardous and Solid Waste Amendments of 1984 
(HSWA). See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 
260.22 (d)(1)-(4). In making the initial delisting determination, EPA 
evaluated the petitioned waste against the listing criteria and factors 
cited in Sec. Sec.  261.11(a)(2) and (a)(3). Based on this review, EPA 
agrees with the petitioner that the waste is non-hazardous with respect 
to the original listing criteria. If EPA had found, based on this 
review, that the waste remained hazardous based on the factors for 
which the waste was originally listed, EPA would have proposed to deny 
the petition. EPA evaluated the waste with respect to other factors or 
criteria to assess whether there is a reasonable basis to believe that 
such additional factors could cause the waste to be hazardous. EPA 
considered whether the waste is acutely toxic, the concentration of the 
constituents in the waste, their tendency to migrate and to 
bioaccumulate, their persistence in the environment once released from 
the waste, plausible and specific types of management of the petitioned 
waste, the quantities of waste generated, and waste variability. EPA 
believes that the petitioned waste does not meet the listing criteria 
and thus should not be a listed waste. EPA's proposed decision to 
delist waste from the facility is based on the information submitted in 
support of this rule, including descriptions of the waste and 
analytical data from the Bayer, Baytown, Texas facility.

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

    Bayer will dispose of the spent carbon in a Subtitle D landfill.

D. When would the proposed delisting exclusion be finalized?

    RCRA section 3001(f) specifically requires EPA to provide notice 
and an opportunity for comment before granting or denying a final 
exclusion. Thus, EPA will not grant the exclusion unless and until it 
addresses all timely public comments (including those at public 
hearings, if any) on this proposal.
    RCRA section 3010(b)(1), at 42 U.S.C. 6930(b)(1), allows rules to 
become effective in less than six months after EPA addresses public 
comments when the regulated facility does not need the six-month period 
to come into compliance. That is the case here, because this rule, if 
finalized, would reduce the existing requirements for persons 
generating hazardous wastes.
    EPA believes that this exclusion should be effective immediately 
upon final publication because a six-month deadline is not necessary to 
achieve the purpose of section 3010(b), and a later effective date 
would impose unnecessary hardship and expense on this petitioner. These 
reasons also provide good cause for making this rule effective 
immediately, upon final publication, under the Administrative Procedure 
Act, 5 U.S.C. 553(d).

E. How would this action affect the states?

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

II. Background

A. What is the history of the delisting program?

    EPA published an amended list of hazardous wastes from nonspecific 
and specific sources on January 16, 1981, as part of its final and 
interim final regulations implementing section 3001 of RCRA. EPA has 
amended this list several times and published it in Sec. Sec.  261.31 
and 261.32. EPA lists these wastes as hazardous because: (1) They 
typically and frequently exhibit one or more of the characteristics of 
hazardous wastes identified in Subpart C of part 261 (that is, 
ignitability, corrosivity, reactivity, and toxicity) or (2) they meet 
the criteria for listing contained in Sec.  261.11(a)(2) or (a)(3).
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
described in these regulations generally is hazardous, a specific waste 
from an individual facility meeting the listing description may not be 
hazardous.
    For this reason, Sec. Sec.  260.20 and 260.22 provide an exclusion 
procedure, called delisting, which allows persons to prove that EPA 
should not regulate a specific waste from a particular generating 
facility as a hazardous waste.

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

    A delisting petition is a request from a facility to EPA or an 
authorized State to exclude wastes from the list of hazardous wastes. 
The facility petitions EPA because it does not believe the wastes 
should be hazardous under RCRA regulations.
    In a delisting petition, the petitioner must show that wastes 
generated at a particular facility do not meet any of the criteria for 
which the waste was listed. The criteria for which EPA lists a waste 
are in part 261 and further explained in the background documents for 
the listed waste.
    In addition, under Sec.  260.22, a petitioner must prove that the 
waste does not exhibit any of the hazardous waste characteristics and 
present sufficient information for EPA to decide whether factors other 
than those for which the waste was listed warrant retaining it as a 
hazardous waste. See part 261 and the background documents for the 
listed waste.
    Generators remain obligated under RCRA to confirm whether their 
waste remains non-hazardous based on the hazardous waste 
characteristics even if EPA has ``delisted'' the waste.

C. What factors must EPA consider in deciding whether to grant a 
delisting petition?

    Besides considering the criteria in Sec.  260.22(a) and section 
3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for 
the listed wastes, EPA must consider any factors (including additional 
constituents) other than those for which EPA listed the waste, if a 
reasonable basis exists to determine that these additional factors 
could cause the waste to be hazardous.
    EPA must also consider as hazardous waste mixtures containing 
listed hazardous wastes and wastes derived from treating, storing, or 
disposing of listed hazardous waste. See Sec.  261.3(a)(2)(iii) and 
(iv) and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules, 
respectively. These wastes are also eligible for exclusion and remain 
hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).

[[Page 7706]]

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

A. What waste did Bayer petition EPA to delist?

    Bayer petitioned EPA on September 26, 2003, to exclude from the 
lists of hazardous waste contained in Sec. Sec.  261.31 and 261.32, the 
spent carbon from its waste water treatment plant. This petition also 
included a request to delist the Clarifier Outlet Wastewater. This 
waste stream was subsequently removed from the petition. The spent 
carbon waste stream is generated from the Bayer facility located in 
Baytown, Texas. The spent carbon is listed under EPA Hazardous Waste 
Nos. K027, K104, K111, and K112, because it is derived from the 
treatment of listed waste water which is treated at the facility's 
waste water treatment plant. Specifically, in its petition, Bayer 
requested that EPA grant an exclusion for 7,728 cubic yards per 
calendar year of spent carbon resulting from the treatment of waste 
waters from the manufacturing processes at its facility.

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

    Bayer produces plastics, coatings, polyurethanes, and industrial 
chemicals. Bayer is the first facility in the United States to employ 
Tower Biology, an onsite waste water treatment plant (the plant) 
process that uses bacteria to treat waste above ground to protect 
ground water resources. The waste waters treated at the plant are 
generated by the various manufacturing operations at the Baytown 
facility. Influent waste waters enter the plant via the ``normal waste 
water header'' or the ``brine waste water header.'' The waste water 
entering the plant via the normal waste water header is placed in the 
primary clarifier. From the primary clarifier, the waste water is 
placed in a tank that feeds the waste water to a denitrification 
reactor prior to treatment in the biological oxidation towers. 
Following biological treatment, the waste water is run through a 
secondary clarifier. Waste water from the clarifier is sent to an 
activated carbon absorption system. Upon exiting the carbon absorption 
system, the waste water is fed to a series of filters. After 
filtration, the treated waste water is placed in an outfall tank for 
subsequent discharge under Bayer's TPDES discharge permit.
    Influent waste waters that enter the plant via the ``brine waste 
water header'' are placed in dedicated brine tanks and a brine carbon 
absorption system. After filtration, the brine waste water is 
commingled in the outfall tank with the treated normal waste water 
prior to being discharged in accordance with the Bayer TPDES discharge 
permit.
    Bayer intends to dispose of the delisted spent carbon at a Subtitle 
D Landfill. Treatment of the waste waters, which result from the 
manufacturing process generates the spent carbon that is classified as 
K027, K104, K111, and K112 listed hazardous wastes pursuant to 40 CFR 
261.31. The 40 CFR part 261, appendix VII hazardous constituents which 
are the basis for listing K027, K104, K111, and K112 hazardous wastes 
are: Toluene diisocyanate, aniline, benzene, diphenylamine, 
nitrobenzene, phenylenediamine, 2,4-dinitrotoluene, 2,4-toluenediamine, 
o-toluidine, and p-toluidine.

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

    To support its petition, Bayer submitted:
    (1) Analytical results of the toxicity characteristic leaching 
procedure and total constituent analysis for volatile and semivolatile 
organics, pesticides, herbicides, dioxins/furans, PCBs and metals for 
six spent carbon samples;
    (2) Analytical results from multiple pH leaching of metals; and
    (3) Descriptions of the waste water treatment process and carbon 
regeneration process.

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

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

   Table 1.--Maximum TCLP and Total Constituent Concentrations of the Spent Carbon and Corresponding Delisting
                                                   Limits \1\
----------------------------------------------------------------------------------------------------------------
                                        Waste stream total        Waste stream  TCLP            Delisting
           Chemical name              concentration  (mg/kg)     concentration  (mg/l)    concentration  (mg/kg)
----------------------------------------------------------------------------------------------------------------
Acetophenone.......................  3.0E-04                   1.60E+00                  8.71E+01
Aniline............................  2.56E-03                  1.20E-01                  2.82E+00
Antimony...........................  7.10E-03                  1.90E-02                  2.51E-01
Arsenic............................  8.20E-03                  1.72E-02                  3.85E-01
Aldrin.............................  8.50E-03                  <2.00E-05                 4.82E-05
Barium.............................  4.42E+01                  2.43E-01                  8.93E+00
Benzene............................  5.00E-03                  <5.00E-02                 5.54E-01
Benzyl Alcohol.....................  2.4E-01                   <4.00E-04                 2.61E+02
Beryllium..........................  1.0E+00                   5.00E-02                  9.53E-01
Bis(2-ethylhexyl)phthalate.........  7.90E-02                  <2.00E-04                 3.42E-01
Butylbenzylphthalate...............  2.50E-02                  1.25E-03                  3.54E+00
Cadmium............................  <4.50E-04                 <2.30E-01                 6.87E-01
Chloroform.........................  2.00E-02                  <5.00E-02                 2.97E-01
Chromium...........................  1.50E+01                  2.30E-03                  5.00E+00
Cobalt.............................  4.10E+00                  2.05E-01                  2.75E+00
Copper.............................  6.58E+01                  3.29E+00                  1.28E+02
Cyanide............................  4.33E+01                  4.18E-003                 1.65E+00
Di-n-butyl phthalate...............  5.60E-02                  2.00E-03                  2.02E+00
Di-n-octyl phthalate...............  3.70E-02                  <1.5E-04                  4.27E-03

[[Page 7707]]

 
Dinitrotoluene, 2,4-...............  1.20E+00                  <1.5 E-04                 2.49E-02
Dioxane, 1,4-......................  1.60E+00                  <4.6E+00                  1.46E+01
Dinitrotoluene, 2,6-...............  1.70E+00                  <1.0E-04                  2.49E-02
Diphenylamine......................  1.00E-01                  <1.50E-04                 1.43E+00
Kepone.............................  <4.15E-01                 <2.20E-04                 3.73E-04
Lead...............................  4.10E-01                  2.60E-03                  5.0E+00
Mercury............................  <3.4E+00                  <2.60E-02                 2.94E-02
2-Nitrophenol......................  3.40E+00                  <1.50E-04                 8.79E+01
N-Nitrodiphenylamine...............  <1.0E-04                  2.30E-01                  3.28E+00
Nickel.............................  1.70E+02                  3.18E-01                  3.45E+00
Phenol.............................  4.10E-02                  <1.00E-04                 5.22E+01
Selenium...........................  1.20E+00                  1.76E-02                  2.66E-01
Tin................................  1.90E+00                  9.50E-02                  2.75E+01
Toluene diisocyanate...............  <1.0 E-02                 <1.0E-02                  1.0E-02
2,4 toluenediamine.................  <2.0 E-02                 <4.0E-03                  5.02E-03
Vanadium...........................  1.17E+01                  5.85E-01                  2.58E+00
Zinc...............................  8.64E+01                  4.32E+00                  3.42E+01
----------------------------------------------------------------------------------------------------------------
\1\ These levels represent the highest concentration of each constituent found in any one sample. These levels
  do not necessarily represent the specific levels found in one sample.
<  Denotes that the constituent was below the detection limit.

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

    The worst case scenario for management of the spent carbon was 
modeled for disposal in a landfill. EPA used such information gathered 
to identify plausible exposure routes (i.e., ground water, surface 
water, soil, air) for hazardous constituents present in the spent 
carbon. EPA determined that disposal in a Subtitle D landfill is the 
most reasonable, worst-case disposal scenario for Bayer's spent carbon. 
EPA applied the DRAS described in 65 FR 58015 (September 27, 2000) and 
65 FR 75637 (December 4, 2000), to predict the maximum allowable 
concentrations of hazardous constituents that may be released from the 
petitioned waste after disposal and determined the potential impact of 
the disposal of Bayer's petitioned waste on human health and the 
environment. In assessing potential risks to ground water, EPA used the 
maximum estimated waste volumes and the maximum reported extract 
concentrations as inputs to the DRAS program to estimate the 
constituent concentrations in the ground water at a hypothetical 
receptor well down gradient from the disposal site. Using the risk 
level (carcinogenic risk of 10-5 and non-cancer hazard index 
of 0.1), the DRAS program can back-calculate the acceptable receptor 
well concentrations (referred to as compliance-point concentrations) 
using standard risk assessment algorithms and Agency health-based 
numbers. Using the maximum compliance-point concentrations and EPA 
Composite Model for Leachate Migration with Transformation Products 
(EPACMTP) fate and transport modeling factors, the DRAS further back-
calculates the maximum permissible waste constituent concentrations not 
expected to exceed the compliance-point concentrations in ground water.
    EPA believes that the EPACMTP fate and transport model represents a 
reasonable worst-case scenario for possible ground water contamination 
resulting from 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 some reasonable worst-case scenarios 
resulted in conservative values for the compliance-point concentrations 
and ensured that the waste, once removed from hazardous waste 
regulation, will not pose a significant threat to human health and/or 
the environment. The DRAS also uses the maximum estimated waste volumes 
and the maximum reported total concentrations to predict possible risks 
associated with releases of waste constituents through surface pathways 
(e.g., volatilization or wind-blown particulate from the landfill). As 
in the above ground water analyses, the DRAS uses the risk level, the 
health-based data and standard risk assessment and exposure algorithms 
to predict maximum compliance-point concentrations of waste 
constituents at a hypothetical point of exposure. Using fate and 
transport equations, the DRAS uses the maximum compliance-point 
concentrations and back-calculates the maximum allowable waste 
constituent concentrations (or ``delisting levels'').
    In most cases, because a delisted waste is no longer subject to 
hazardous waste control, EPA is generally unable to predict, and does 
not presently control, how a petitioner will manage a waste after 
delisting. Therefore, EPA currently believes that it is inappropriate 
to consider extensive site-specific factors when applying the fate and 
transport model. EPA does control the type of unit where the waste is 
disposed.
    EPA also considers the applicability of ground water monitoring 
data during the evaluation of delisting petitions. In this case, Bayer 
has never directly disposed of this material in a solid waste landfill, 
so no representative data exists. Therefore, EPA has determined that it 
would be unnecessary to request ground water monitoring data.
    EPA believes that the descriptions of Bayer's spent carbon and 
analytical characterization which illustrate the presence of toxic 
constituents at lower concentrations in these waste streams provide a 
reasonable basis to conclude that the likelihood of migration of 
hazardous constituents from the petitioned waste will be substantially 
reduced so that short-term and long-term threats to human health and 
the environment are minimized.
    The DRAS results, which calculated the maximum allowable 
concentration of chemical constituents in the spent carbon are 
presented in Table 1. Based

[[Page 7708]]

on the comparison of the DRAS results and maximum TCLP concentrations 
found in Table 1, the petitioned waste should be delisted because no 
constituents of concern are likely to be present or formed as reaction 
products or by products in Bayer's waste.

F. What sid EPA conclude about Bayer's analysis?

    EPA concluded, after reviewing Bayer's processes that no other 
hazardous constituents of concern, other than those for which Bayer 
tested, are likely to be present or formed as reaction products or by-
products in Bayer's wastes. In addition, on the basis of explanations 
and analytical data provided by Bayer, pursuant to Sec.  260.22, EPA 
concludes that the petitioned waste, spent carbon, does not exhibit any 
of the characteristics of ignitability, corrosivity, reactivity, or 
toxicity. See Sec. Sec.  261.21, 261.22, 261.23, and 261.24 
respectively.

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

    During the evaluation of this petition, in addition to the 
potential impacts to the ground water, EPA also considered the 
potential impact of the petitioned waste via non-ground water exposure 
routes (i.e., air emissions and surface runoff) for the spent carbon. 
With regard to airborne dispersion in particular, EPA believes that 
exposure to airborne contaminants from the petitioned waste is 
unlikely. No appreciable air releases are likely from the spent carbon 
under any likely disposal conditions. EPA evaluated the potential 
hazards resulting from the unlikely scenario of airborne exposure to 
hazardous constituents released from the waste water in an open 
landfill. The results of this worst-case analysis indicated that there 
is no substantial present or potential hazard to human health and the 
environment from airborne exposure to constituents from the spent 
carbon.

H. What is EPA's evaluation of this delisting petition?

    The descriptions by Bayer of the hazardous waste process and 
analytical characterization, with the proposed verification testing 
requirements (as discussed later in this action), provide a reasonable 
basis for EPA to grant the petition. The data submitted in support of 
the petition show that constituents in the waste are below the maximum 
allowable concentrations (See Table 1). EPA believes that the spent 
carbon generated by Bayer contains hazardous constituents at levels 
which will present minimal short-term and long-term threats from the 
petitioned waste to human health and the environment.
    Thus, EPA believes that it should grant to Bayer an exclusion from 
the list of hazardous wastes for the spent carbon. EPA believes that 
the data submitted in support of the petition show the Bayer's spent 
carbon to be non-hazardous.
    EPA has reviewed the sampling procedures used by Bayer and has 
determined they satisfy EPA's criteria for collecting representative 
samples of variable constituent concentrations in the spent carbon. The 
data submitted in support of the petition show that constituents in 
Bayer's wastes are presently below the compliance-point concentrations 
used in the delisting decision-making process and would not pose a 
substantial hazard to the environment and the public. EPA believes that 
Bayer has successfully demonstrated that the spent carbon is non-
hazardous.
    EPA, therefore, proposes to grant an exclusion to Bayer for the 
spent carbon described in its September 2003 petition. EPA's decision 
to exclude this waste is based on analysis performed on samples taken 
of the spent carbon.
    If EPA finalizes the proposed rule, EPA will no longer regulate 
7,728 cubic yards/year of spent carbon from Bayer's Baytown facility 
under parts 262 through 268 and the permitting standards of part 270.

IV. Next Steps

A. With what conditions must the petitioner comply?

    The petitioner, Bayer, must comply with the requirements in 40 CFR 
part 261, appendix IX, Table 2 as amended by this action. The text 
below gives the rationale and details of those requirements.
(1) Delisting Levels
    This paragraph provides the levels of constituent concentrations 
for which Bayer must test in the spent carbon, below which these wastes 
would be considered non-hazardous.
    EPA selected the set of inorganic and organic constituents 
specified in paragraph (1) and listed in 40 CFR part 261, appendix IX, 
Table 2, based on information in the petition. EPA compiled the 
inorganic and organic constituents list from descriptions of the 
manufacturing process used by Bayer, previous test data provided for 
the waste, and the respective health-based levels used in delisting 
decision-making. These delisting levels correspond to the allowable 
levels measured in the leachable concentrations of the spent carbon.
(2) Waste Holding and Handling
    Waste classification as non-hazardous cannot begin until compliance 
with the limits set in paragraph (1) has occurred for two consecutive 
quarterly sampling events. For example, if Bayer is issued a final 
exclusion in August, the first quarter samples are due in November and 
the second quarter samples are due in February. If EPA deems that both 
the first and second quarter samples (a total of four) meet all the 
delisting limits, classification of the waste as non-hazardous can 
begin in March. If constituent levels in any sample taken by Bayer 
exceed any of the delisting levels set in paragraph (1), Bayer must: 
(i) notify EPA in accordance with paragraph (6), and; (ii) manage and 
dispose of the spent carbon as hazardous waste generated under Subtitle 
C of RCRA.
(3) Verification Testing Requirements
    Bayer must complete a verification testing program on the spent 
carbon to assure that the wastes do not exceed the maximum levels 
specified in paragraph (1). If EPA determines that the data collected 
under this paragraph does not support the data provided in the 
petition, the exclusion will not cover the tested waste. This 
verification program operates on two levels.
    The first part of the quarterly verification testing program 
consists of testing a batch of spent carbon for specified indicator 
parameters as described in paragraph (1). Each quarterly sampling event 
will consist of at least two samples of the spent carbon. Levels of 
constituents measured in the samples of the spent carbon that do not 
exceed the levels set forth in paragraph (1) can be considered non-
hazardous after two consecutive quarters of sampling data meet the 
levels listed in paragraph (1).
    The second part of the verification testing program is the annual 
testing of two representative composite samples of the spent carbon for 
all constituents specified in paragraph (1).
    If Bayer demonstrates for two consecutive quarters complete 
attainment of all specified limits, then Bayer may request approval of 
EPA to reduce the frequency of testing to annually. If, after review of 
performance of the treatment system, EPA finds that annual testing is 
adequately protective of human health and the environment, then EPA may 
authorize Bayer to reduce the quarterly comprehensive sampling 
frequency to an annual basis. If the annual testing of the wastes does 
not meet the delisting levels in paragraph (1), Bayer must notify EPA 
according to

[[Page 7709]]

the requirements in paragraph (6). EPA will then take the appropriate 
actions necessary to protect human health and the environment as 
described in paragraph (6). Bayer must provide sampling results that 
support the rationale that the delisting exclusion should not be 
withdrawn.
    The exclusion is effective upon publication in the Federal Register 
but the change in waste classification as ``non-hazardous'' cannot 
begin until two consecutive quarters of verification sampling comply 
with the levels specified in paragraph (1). The waste classification as 
``non-hazardous'' is also not authorized, if Bayer fails to perform the 
quarterly and yearly testing as specified herein. Should Bayer fail to 
conduct the quarterly/yearly testing as specified herein, then disposal 
of spent carbon as delisted waste may not occur in the following 
quarter(s)/year(s) until Bayer obtains the written approval of EPA.
(4) Changes in Operating Conditions
    Paragraph (4) would allow Bayer the flexibility of modifying its 
processes (for example, changes in equipment or change in operating 
conditions) to improve its treatment processes. However, Bayer must 
prove the effectiveness of the modified process and request approval 
from EPA. Bayer must manage wastes generated during the new process 
demonstration as hazardous waste through verification sampling within 
30 days of start-up.
(5) Data Submittals
    To provide appropriate documentation that the Bayer facility is 
correctly managing the spent carbon, Bayer must compile, summarize, and 
keep delisting records on-site for a minimum of five years. It should 
keep all analytical data obtained pursuant to paragraph (3), including 
quality control information, for five years. Paragraph (5) requires 
that Bayer furnish these data upon request for inspection by any 
employee or representative of EPA or the State of Texas.
    If the proposed exclusion is made final, then it will apply only to 
7,728 cubic yards per calendar year of spent carbon generated at the 
Bayer facility after successful verification testing.
    EPA would require Bayer to submit additional verification data 
under any of the following circumstances:
    (a) If Bayer significantly alters the manufacturing process 
treatment system except as described in paragraph (4).
    (b) If Bayer uses any new manufacturing or production process(es), 
or significantly changes the current process(es) described in its 
petition; or
    (c) If Bayer makes any changes that could affect the composition or 
type of waste generated.
    Bayer must submit a modification to the petition complete with full 
sampling and analysis for circumstances where the waste volume changes 
and/or additional waste codes are added to the waste stream. EPA will 
publish an amendment to the exclusion if the changes are acceptable.
    Bayer must manage waste volumes greater than 7,728 cubic yards of 
spent carbon as hazardous waste until EPA grants a revised exclusion. 
When this exclusion becomes final, the management by Bayer of the spent 
carbon covered in this petition would be relieved from Subtitle C 
jurisdiction. Bayer may not classify the waste as non-hazardous until 
the revised exclusion is finalized.
(6) Reopener
    The purpose of paragraph (6) is to require Bayer to disclose new or 
different information related to a condition at the facility or 
disposal of the waste, if it is pertinent to the delisting. Bayer must 
also use this procedure if the waste sample in the annual testing fails 
to meet the levels found in paragraph (1). This provision will allow 
EPA to reevaluate the exclusion, if a source provides new or additional 
information to EPA. EPA will evaluate the information on which it based 
the decision to see if it is still correct or if circumstances have 
changed so that the information is no longer correct or would cause EPA 
to deny the petition, if presented.
    This provision expressly requires Bayer to report differing site 
conditions or assumptions used in the petition in addition to failure 
to meet the annual testing conditions within 10 days of discovery. If 
EPA discovers such information itself or from a third party, it can act 
on it as appropriate. The language being proposed is similar to those 
provisions found in RCRA regulations governing no-migration petitions 
at Sec.  268.6.
    It is EPA's position that it has the authority under RCRA and the 
Administrative Procedures Act (APA), 5 U.S.C. 551 (1978) et seq., to 
reopen a delisting decision. EPA may reopen a delisting decision when 
it receives new information that calls into question the assumptions 
underlying the delisting.
    EPA believes a clear statement of its authority in delisting is 
merited in light of EPA's experience. See the Federal Register notice 
regarding Reynolds Metals Company at 62 FR 37694 (July 14, 1997) and 62 
FR 63458 (December 1, 1997) where the delisted waste leached at greater 
concentrations into the environment than the concentrations predicted 
when conducting the TCLP, leading EPA to repeal the delisting. If an 
immediate threat to human health and the environment presents itself, 
EPA will continue to address these situations on a case-by-case basis. 
Where necessary, EPA will make a good cause finding to justify 
emergency rulemaking. See APA section 553 (b)(3)(B).

B. What happens, if Bayer violates the terms and conditions?

    If Bayer violates the terms and conditions established in the 
exclusion, EPA will start procedures to withdraw the exclusion. Where 
there is an immediate threat to human health and the environment, EPA 
will evaluate the need for enforcement activities on a case-by-case 
basis. EPA expects Bayer to conduct the appropriate waste analysis and 
comply with the criteria explained above in paragraph (1) of the 
exclusion.

V. Public Comments

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

    EPA is requesting public comments on this proposed decision. Please 
send three copies of your comments. Send two copies to the Chief, 
Corrective Action and Waste Minimization Section, Multimedia Permitting 
and Planning Division, U. S. Environmental Protection Agency Region 6, 
1445 Ross Avenue, Dallas, Texas 75202. Send a third copy to the 
Industrial Hazardous Waste Permits Division, Technical Evaluation Team, 
Texas Commission on Environmental Quality, P.O. Box 13087, Austin, TX 
78711-3087. Identify your comments at the top with this regulatory 
docket number: R6-TXDEL-FY06-Bayer-Spent Carbon. You may submit your 
comments electronically to Michelle Peace at [email protected].

B. How may I review the docket or obtain copies of the proposed 
exclusion?

    You may review the RCRA regulatory docket for this proposed rule at 
the U. S. Environmental Protection Agency Region 6, 1445 Ross Avenue, 
Dallas, TX 75202. It is available for viewing in EPA Freedom of 
Information Act Review Room from 9 a.m. to 4 p.m., Monday through 
Friday, excluding Federal holidays. Call (214) 665-6444 for 
appointments. The public may copy material from any regulatory docket 
at no cost for the first 100 pages and at

[[Page 7710]]

fifteen cents per page for additional copies.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this rule is not of general applicability 
and therefore is not a regulatory action subject to review by the 
Office of Management and Budget (OMB). This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a 
particular facility only. Because this rule is of particular 
applicability relating to a particular facility, it is not subject to 
the regulatory flexibility provisions of the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the 
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because 
this rule will affect only a particular facility, it will not 
significantly or uniquely affect small governments, as specified in 
section 203 of UMRA. Because this rule will affect only a particular 
facility, this proposed rule does not have federalism implications. It 
will not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132, ``Federalism,'' (64 
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply 
to this rule. Similarly, because this rule will affect only a 
particular facility, this proposed rule does not have tribal 
implications, as specified in Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments'' (65 FR 67249, November 9, 
2000). Thus, Executive Order 13175 does not apply to this rule. This 
rule also is not subject to Executive Order 13045, ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant as 
defined in Executive Order 12866, and because the Agency does not have 
reason to believe the environmental health or safety risks addressed by 
this action present a disproportionate risk to children. The basis for 
this belief is that the Agency used the DRAS program, which considers 
health and safety risks to infants and children, to calculate the 
maximum allowable concentrations for this rule. This rule is not 
subject to Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866. This rule does not involve technical 
standards; thus, the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. As required by section 3 of Executive Order 12988, ``Civil 
Justice Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule, 
EPA has taken the necessary steps to eliminate drafting errors and 
ambiguity, minimize potential litigation, and provide a clear legal 
standard for affected conduct. The Congressional Review Act, 5 U.S.C. 
801 et seq., as added by the Small Business Regulatory Enforcement 
Fairness Act of 1996, generally provides that before a rule may take 
effect, the agency promulgating the rule must submit a rule report 
which includes a copy of the rule to each House of the Congress and to 
the Comptroller General of the United States. Section 804 exempts from 
section 801 the following types of rules (1) Rules of particular 
applicability; (2) rules relating to agency management or personnel; 
and (3) rules of agency organization, procedure, or practice that do 
not substantially affect the rights or obligations of non-agency 
parties 5 U.S.C. 804(3). EPA is not required to submit a rule report 
regarding this action under section 801 because this is a rule of 
particular applicability.

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: February 3, 2006.
William Rhea,
Acting Director, Multimedia Planning and Permitting Division.
    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 Table 2 of Appendix IX of Part 261 add the following waste 
stream in alphabetical order by facility to read as follows:

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

                                 Table 2.--Waste Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
                   Facility                                 Address                     Waste Description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Bayer Material Science.......................  Baytown, TX.....................  Spent Carbon (EPA Hazardous
                                                                                  Waste Numbers K027, K104,
                                                                                  K111, and K112) generated at a
                                                                                  maximum rate of 7,728 cubic
                                                                                  yards per calendar year after
                                                                                  [publication date of the final
                                                                                  rule].
                                                                                 For the exclusion to be valid,
                                                                                  Bayer must implement a
                                                                                  verification testing program
                                                                                  that meets the following
                                                                                  Paragraphs:
                                                                                 (1) Delisting Levels: All
                                                                                  concentrations for those
                                                                                  constituents must not exceed
                                                                                  the maximum allowable
                                                                                  concentrations in mg/l
                                                                                  specified in this paragraph.
                                                                                 Spent Carbon Leachable
                                                                                  Concentrations (mg/l):
                                                                                  Antimony-0.251; Arsenic-0.385,
                                                                                  Barium-8.93; Beryllium-0.953;
                                                                                  Cadmium-0.687; Chromium-5.0;
                                                                                  Cobalt-2.75; Copper-128.0;
                                                                                  Cyanide-1.65; Lead-5.0;
                                                                                  Mercury-0.0294; Nickel-3.45;
                                                                                  Selenium-0.266 ; Tin-2.75;
                                                                                  Vanadium-2.58; Zinc-34.2;
                                                                                  Aldrin-0.0000482; Acetophenone-
                                                                                  87.1; Aniline-2.82; Benzene--
                                                                                  0.554; Bis(2-
                                                                                  ethylhexyl)phthalate-0.342;
                                                                                  Benzyl alcohol-261;
                                                                                  Butylbenzylphthalate-3.54;
                                                                                  Chloroform-0.297; Di-n-octyl
                                                                                  phthalate-0.00427; 2,4-
                                                                                  Dinitrotoluene-0.0249; 2,6-
                                                                                  Dinitrotoluene-0.0249
                                                                                  Diphenylamine-1.43; 1,4-
                                                                                  Dioxane-14.6; Di-n-butyl
                                                                                  phthalate-2.02; Kepone-
                                                                                  0.000373; 2-Nitrophenol-87.9;
                                                                                  N-Nitrodiphenylamine-3.28;
                                                                                  Phenol-52.2; 2,4-
                                                                                  Toluenediamine-0.00502;
                                                                                  Toluene diisocyanate-0.001.
                                                                                 (2) Waste Holding and Handling:
                                                                                 (A) Waste classification as non-
                                                                                  hazardous can not begin until
                                                                                  compliance with the limits set
                                                                                  in paragraph (1) for spent
                                                                                  carbon has occurred for two
                                                                                  consecutive quarterly sampling
                                                                                  events.

[[Page 7711]]

 
                                                                                 (B) If constituent levels in
                                                                                  any sample taken by Bayer
                                                                                  exceed any of the delisting
                                                                                  levels set in paragraph (1)
                                                                                  for the spent carbon, Bayer
                                                                                  must do the following:
                                                                                 (i) Notify EPA in accordance
                                                                                  with paragraph (6) and
                                                                                 (ii) Manage and dispose the
                                                                                  spent carbon as hazardous
                                                                                  waste generated under Subtitle
                                                                                  C of RCRA.
                                                                                 (3) Testing Requirements:
                                                                                 Upon this exclusion becoming
                                                                                  final, Bayer may perform
                                                                                  quarterly analytical testing
                                                                                  by sampling and analyzing the
                                                                                  spent carbon as follows:
                                                                                 (A) Quarterly Testing:
                                                                                 (i) Collect two representative
                                                                                  composite samples of the spent
                                                                                  carbon at quarterly intervals
                                                                                  after EPA grants the final
                                                                                  exclusion. The first composite
                                                                                  samples may be taken at any
                                                                                  time after EPA grants the
                                                                                  final approval. Sampling
                                                                                  should be performed in
                                                                                  accordance with the sampling
                                                                                  plan approved by EPA in
                                                                                  support of the exclusion.
                                                                                 (ii) Analyze the samples for
                                                                                  all constituents listed in
                                                                                  paragraph (1). Any composite
                                                                                  sample taken that exceeds the
                                                                                  delisting levels listed in
                                                                                  paragraph (1) for the spent
                                                                                  carbon must be disposed as
                                                                                  hazardous waste in accordance
                                                                                  with the applicable hazardous
                                                                                  waste requirements.
                                                                                 (iii) Within thirty (30) days
                                                                                  after taking its first
                                                                                  quarterly sample, Bayer will
                                                                                  report its first quarterly
                                                                                  analytical test data to EPA.
                                                                                  If levels of constituents
                                                                                  measured in the samples of the
                                                                                  spent carbon do not exceed the
                                                                                  levels set forth in paragraph
                                                                                  (1) of this exclusion for two
                                                                                  consecutive quarters, Bayer
                                                                                  can manage and dispose the non-
                                                                                  hazardous spent carbon
                                                                                  according to all applicable
                                                                                  solid waste regulations.
                                                                                 (B) Annual Testing:
                                                                                 (i) If Bayer completes the
                                                                                  quarterly testing specified in
                                                                                  paragraph (3) above and no
                                                                                  sample contains a constituent
                                                                                  at a level which exceeds the
                                                                                  limits set forth in paragraph
                                                                                  (1), Bayer may begin annual
                                                                                  testing as follows: Bayer must
                                                                                  test two representative
                                                                                  composite samples of the spent
                                                                                  carbon for all constituents
                                                                                  listed in paragraph (1) at
                                                                                  least once per calendar year.
                                                                                 (ii) The samples for the annual
                                                                                  testing shall be a
                                                                                  representative composite
                                                                                  sample according to
                                                                                  appropriate methods. As
                                                                                  applicable to the method-
                                                                                  defined parameters of concern,
                                                                                  analyses requiring the use of
                                                                                  SW-846 methods incorporated by
                                                                                  reference in 40 CFR 260.11
                                                                                  must be used without
                                                                                  substitution. As applicable,
                                                                                  the SW-846 methods might
                                                                                  include Methods 0010, 0011,
                                                                                  0020, 0023A, 0030, 0031, 0040,
                                                                                  0050, 0051, 0060, 0061, 1010A,
                                                                                  1020B, 1110A, 1310B, 1311,
                                                                                  1312, 1320, 1330A, 9010C,
                                                                                  9012B, 9040C, 9045D, 9060A,
                                                                                  9070A (uses EPA Method 1664,
                                                                                  Rev. A), 9071B, and 9095B.
                                                                                  Methods must meet Performance
                                                                                  Based Measurement System
                                                                                  Criteria in which the Data
                                                                                  Quality Objectives are to
                                                                                  demonstrate that samples of
                                                                                  the Bayer spent carbon are
                                                                                  representative for all
                                                                                  constituents listed in
                                                                                  paragraph (1).
                                                                                 (iii) The samples for the
                                                                                  annual testing taken for the
                                                                                  second and subsequent annual
                                                                                  testing events shall be taken
                                                                                  within the same calendar month
                                                                                  as the first annual sample
                                                                                  taken.
                                                                                 (iv) The annual testing report
                                                                                  should include the total
                                                                                  amount of waste in cubic yards
                                                                                  disposed during the calendar
                                                                                  year.
                                                                                 (4) Changes in Operating
                                                                                  Conditions: If Bayer
                                                                                  significantly changes the
                                                                                  process described in its
                                                                                  petition or starts any
                                                                                  processes that generate(s) the
                                                                                  waste that may or could affect
                                                                                  the composition or type of
                                                                                  waste generated (by
                                                                                  illustration, but not
                                                                                  limitation, changes in
                                                                                  equipment or operating
                                                                                  conditions of the treatment
                                                                                  process), it must notify EPA
                                                                                  in writing and it may no
                                                                                  longer handle the wastes
                                                                                  generated from the new process
                                                                                  as non-hazardous until the
                                                                                  wastes meet the delisting
                                                                                  levels set in paragraph (1)
                                                                                  and it has received written
                                                                                  approval to do so from EPA.
                                                                                 Bayer must submit a
                                                                                  modification to the petition
                                                                                  complete with full sampling
                                                                                  and analysis for circumstances
                                                                                  where the waste volume changes
                                                                                  and/or additional waste codes
                                                                                  are added to the waste stream.
                                                                                 (5) Data Submittals:
                                                                                 Bayer must submit the
                                                                                  information described below.
                                                                                  If Bayer fails to submit the
                                                                                  required data within the
                                                                                  specified time or maintain the
                                                                                  required records on-site for
                                                                                  the specified time, EPA, at
                                                                                  its discretion, will consider
                                                                                  this sufficient basis to
                                                                                  reopen the exclusion as
                                                                                  described in paragraph (6).
                                                                                  Bayer must:
                                                                                 (A) Submit the data obtained
                                                                                  through paragraph 3 to the
                                                                                  Chief, Corrective Action and
                                                                                  Waste Minimization Section,
                                                                                  Multimedia Planning and
                                                                                  Permitting Division, U. S.
                                                                                  Environmental Protection
                                                                                  Agency Region 6, 1445 Ross
                                                                                  Ave., Dallas, Texas, 75202,
                                                                                  within the time specified. All
                                                                                  supporting data can be
                                                                                  submitted on CD-ROM or some
                                                                                  comparable electronic media.
                                                                                 (B) Compile records of
                                                                                  analytical data from paragraph
                                                                                  (3), summarized, and
                                                                                  maintained on-site for a
                                                                                  minimum of five years.
                                                                                 (C) Furnish these records and
                                                                                  data when either EPA or the
                                                                                  State of Texas requests them
                                                                                  for inspection.
                                                                                 (D) Send along with all data a
                                                                                  signed copy of the following
                                                                                  certification statement, to
                                                                                  attest to the truth and
                                                                                  accuracy of the data
                                                                                  submitted:
                                                                                 ``Under civil and criminal
                                                                                  penalty of law for the making
                                                                                  or submission of false or
                                                                                  fraudulent statements or
                                                                                  representations (pursuant to
                                                                                  the applicable provisions of
                                                                                  the Federal Code, which
                                                                                  include, but may not be
                                                                                  limited to, 18 U.S.C. 1001 and
                                                                                  42 U.S.C. 6928), I certify
                                                                                  that the information contained
                                                                                  in or accompanying this
                                                                                  document is true, accurate and
                                                                                  complete.

[[Page 7712]]

 
                                                                                 As to the (those) identified
                                                                                  section(s) of this document
                                                                                  for which I cannot personally
                                                                                  verify its (their) truth and
                                                                                  accuracy, I certify as the
                                                                                  company official having
                                                                                  supervisory responsibility for
                                                                                  the persons who, acting under
                                                                                  my direct instructions, made
                                                                                  the verification that this
                                                                                  information is true, accurate
                                                                                  and complete.
                                                                                 If any of this information is
                                                                                  determined by EPA in its sole
                                                                                  discretion to be false,
                                                                                  inaccurate or incomplete, and
                                                                                  upon conveyance of this fact
                                                                                  to the company, I recognize
                                                                                  and agree that this exclusion
                                                                                  of waste will be void as if it
                                                                                  never had effect or to the
                                                                                  extent directed by EPA and
                                                                                  that the company will be
                                                                                  liable for any actions taken
                                                                                  in contravention of the
                                                                                  company's RCRA and CERCLA
                                                                                  obligations premised upon the
                                                                                  company's reliance on the void
                                                                                  exclusion.''
                                                                                 (6) Reopener
                                                                                 (A) If, anytime after disposal
                                                                                  of the delisted waste Bayer
                                                                                  possesses or is otherwise made
                                                                                  aware of any environmental
                                                                                  data (including but not
                                                                                  limited to leachate data or
                                                                                  ground water monitoring data)
                                                                                  or any other data relevant to
                                                                                  the delisted waste indicating
                                                                                  that any constituent
                                                                                  identified for the delisting
                                                                                  verification testing is at
                                                                                  level higher than the
                                                                                  delisting level allowed by the
                                                                                  Division Director in granting
                                                                                  the petition, then the
                                                                                  facility must report the data,
                                                                                  in writing, to the Division
                                                                                  Director within 10 days of
                                                                                  first possessing or being made
                                                                                  aware of that data.
                                                                                 (B) If either the quarterly or
                                                                                  annual testing of the waste
                                                                                  does not meet the delisting
                                                                                  requirements in paragraph 1,
                                                                                  Bayer must report the data, in
                                                                                  writing, to the Division
                                                                                  Director within 10 days of
                                                                                  first possessing or being made
                                                                                  aware of that data.
                                                                                 (C) If Bayer fails to submit
                                                                                  the information described in
                                                                                  paragraphs (5),(6)(A) or
                                                                                  (6)(B) or if any other
                                                                                  information is received from
                                                                                  any source, the Division
                                                                                  Director will make a
                                                                                  preliminary determination as
                                                                                  to whether the reported
                                                                                  information requires EPA
                                                                                  action to protect human health
                                                                                  and/or the environment.
                                                                                  Further action may include
                                                                                  suspending, or revoking the
                                                                                  exclusion, or other
                                                                                  appropriate response necessary
                                                                                  to protect human health and
                                                                                  the environment.
                                                                                 (D) If the Division Director
                                                                                  determines that the reported
                                                                                  information requires action by
                                                                                  EPA, the Division Director
                                                                                  will notify the facility in
                                                                                  writing of the actions the
                                                                                  Division Director believes are
                                                                                  necessary to protect human
                                                                                  health and the environment.
                                                                                  The notice shall include a
                                                                                  statement of the proposed
                                                                                  action and a statement
                                                                                  providing the facility with an
                                                                                  opportunity to present
                                                                                  information as to why the
                                                                                  proposed EPA action is not
                                                                                  necessary. The facility shall
                                                                                  have 10 days from the date of
                                                                                  the Division Director's notice
                                                                                  to present such information.
                                                                                 (E) Following the receipt of
                                                                                  information from the facility
                                                                                  described in paragraph (6)(D)
                                                                                  or (if no information is
                                                                                  presented under paragraph
                                                                                  (6)(D)) the initial receipt of
                                                                                  information described in
                                                                                  paragraphs (5), (6)(A) or
                                                                                  (6)(B), the Division Director
                                                                                  will issue a final written
                                                                                  determination describing EPA
                                                                                  actions that are necessary to
                                                                                  protect human health and/or
                                                                                  the environment. Any required
                                                                                  action described in the
                                                                                  Division Director's
                                                                                  determination shall become
                                                                                  effective immediately, unless
                                                                                  the Division Director provides
                                                                                  otherwise.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 06-1398 Filed 2-13-06; 8:45 am]
BILLING CODE 6560-50-P