[Federal Register Volume 71, Number 94 (Tuesday, May 16, 2006)]
[Rules and Regulations]
[Pages 28275-28279]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4514]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-8169-5]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: Environmental Protection Agency (EPA) is granting a petition 
submitted by Bayer Material Science LLC (Bayer) to exclude (or delist) 
a certain solid waste generated by its Baytown, TX plant from the lists 
of hazardous wastes. This final rule responds to the petition submitted 
by Bayer to delist K027, K104, K111, and K112 spent carbon generated 
from the facility's waste water treatment plant.
    After careful analysis and use of the Delisting Risk Assessment 
Software (DRAS), EPA has concluded the petitioned waste is not 
hazardous waste. This exclusion applies to 7,728 cubic yards per year 
of the spent carbon.

DATES: Effective Date: May 16, 2006.

ADDRESSES: The public docket for this final rule is located at the EPA 
Region 6, 1445 Ross Avenue, Dallas, Texas 75202, and is available for 
viewing in EPA's Freedom of Information Act review room on the 7th 
floor from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal 
holidays. Call (214) 665-6444 for appointments. The reference number 
for this docket is [R6-TXDEL-FY06-Bayer-Spent Carbon]. 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: Ben Banipal, Section Chief of the 
Corrective Action and Waste Minimization Section, Multimedia Planning 
and Permitting Division (6PD-C), EPA Region 6, 1445 Ross Avenue, 
Dallas, Texas 75202. For technical information concerning this notice, 
contact Michelle Peace, EPA Region 6, 1445 Ross Avenue, (6PD-C), 
Dallas, Texas 75202, at (214) 665-7430, or [email protected].

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 Action?
    C. What Are the Limits of This exclusion?
    D. How Will Bayer 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 Information and Data
    A. What Waste Did Bayer Petition EPA To Delist?
    B. How Much Waste Did Bayer Propose To Delist?
    C. How Did Bayer Sample and Analyze the Waste Data in This 
Petition?
IV. Public Comments Received on the Proposed Exclusion
    Who Submitted Comments on the Proposed Rule?
V. Statutory and Executive Order Reviews

I. Overview Information

A. What Action Is EPA Finalizing?

    After evaluating the petition, EPA proposed, on February 14, 2006, 
to exclude the waste from the lists of hazardous waste under 40 CFR 
261.31 and 261.32 (see 71 FR 7704). EPA is finalizing the decision to 
grant Bayer's delisting petition to have its spent carbon generated 
from treating waste waters at the plant subject to certain continued 
verification and monitoring conditions.

B. Why Is EPA Approving This Action?

    Bayer's petition requests a delisting from the K027, K104, K111, 
and K112, waste listings under 40 CFR 260.20 and 260.22. Bayer does not 
believe that the petitioned waste meets the criteria for which EPA 
listed it. Bayer also believes no additional constituents or factors 
could cause the waste to be hazardous. EPA's review of this petition 
included consideration of the original listing criteria and the 
additional factors required by the Hazardous and Solid Waste Amendments 
of 1984. See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 
260.22(d)(1)-(4) (hereinafter all sectional references are to 40 CFR 
unless otherwise indicated). In making the final delisting 
determination, EPA evaluated the petitioned waste against the listing 
criteria and factors cited in Sec.  261.11(a)(2) and (a)(3). Based on 
this review, EPA agrees with the petitioner that the waste is 
nonhazardous with respect to the original listing criteria. If EPA had 
found, based on this review, that the waste remained hazardous based on 
the factors for which the waste was originally listed, EPA would have 
proposed to deny the petition. EPA evaluated the waste with respect to 
other factors or criteria to assess whether there is a reasonable basis 
to believe that such additional factors could cause the waste to be 
hazardous. EPA considered whether the waste is acutely toxic, the 
concentration of the constituents in the waste, their tendency to 
migrate and to bioaccumulate, their persistence in the environment once 
released from the waste, plausible and specific types of management of 
the petitioned waste, the quantities of waste generated, and waste 
variability. EPA believes that the petitioned waste does not meet the 
listing criteria and thus should not be a listed waste. EPA's final 
decision to delist waste from Bayer's facility is based on the 
information submitted in support of this rule, including descriptions 
of the wastes and analytical data from the Baytown, TX facility.

[[Page 28276]]

C. What Are the Limits of This Exclusion?

    This exclusion applies to the waste described in the petition only 
if the requirements described in 40 CFR part 261, appendix IX, Table 2 
and the conditions contained herein are satisfied.

D. How Will Bayer Manage the Waste, If It Is Delisted?

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

E. When Is the Final Delisting Exclusion Effective?

    This rule is effective May 16, 2006. The Hazardous and Solid Waste 
Amendments of 1984 amended section 3010 of RCRA, 42 U.S.C. 6930(b)(1), 
allows rules to become effective less than six months after the rule is 
published 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 waste. This reduction in existing requirements 
also provides 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 states which have 
received authorization from EPA to make their own delisting decisions.
    EPA allows states to impose their own non-RCRA regulatory 
requirements that are more stringent than EPA's requirements, 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.
    EPA has also authorized some states (for example, Louisiana, 
Oklahoma, Georgia, and Illinois) to administer a RCRA 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 unless that state makes the rule part of its authorized program. 
If Bayer transports the petitioned waste to or manages the waste in any 
state with delisting authorization, Bayer must obtain delisting 
authorization from that state before it 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 or delist from the RCRA 
list of hazardous waste, certain wastes the generator believes should 
not be considered hazardous under RCRA.

B. What Regulations Allow Facilities To Delist a Waste?

    Under Sec. Sec.  260.20 and 260.22, facilities may petition EPA to 
remove their wastes from hazardous waste regulation by excluding them 
from the lists of hazardous wastes contained in Sec. Sec.  261.31 and 
261.32. Specifically, Sec.  260.20 allows any person to petition the 
Administrator to modify or revoke any provision of 40 CFR parts 260 
through 265 and 268. Section 260.22 provides generators the opportunity 
to petition the Administrator to exclude a waste from a particular 
generating facility from the hazardous waste lists.

C. What Information Must the Generator Supply?

    Petitioners must provide sufficient information to EPA to allow 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 or his delegate 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 and that such 
factors do not warrant retaining the waste as a hazardous waste.

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

A. What Waste Did Bayer Petition EPA to Delist?

    On September 26, 2003, Bayer petitioned EPA to exclude from the 
lists of hazardous waste contained in Sec.  261.32, spent carbon 
generated from its facility located in Baytown, Texas. The waste falls 
under the classification of a listed waste under Sec.  261.30.

B. How Much Waste Did Bayer Propose to Delist?

    Specifically, in its petition, Bayer requested that EPA grant a 
conditional exclusion for 7,728 cubic yards per year of the spent 
carbon.

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

    To support its petition, Bayer submitted:
    (1) Analytical results of the toxicity characteristic leaching 
procedure (TCLP) 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.

IV. Public Comments Received on the Proposed Exclusion

Who Submitted Comments on the Proposed Rule?

    There were no comments submitted on the proposed rule.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review `` 
(58 FR 51735, October 4, 1993), this rule is not of general 
applicability and therefore is not a regulatory action subject to 
review by the Office of Management and Budget (OMB). This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it 
applies to a particular facility only. Because this rule is of 
particular applicability relating to a particular facility, it is not 
subject to the regulatory flexibility provisions of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.), or to sections 202, 204, and 
205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). 
Because this rule will affect only a particular facility, it will not 
significantly or uniquely affect small governments, as specified in 
section 203 of UMRA. Because this rule will affect only a particular 
facility, this final 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 final rule does not have tribal

[[Page 28277]]

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 today's 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.

    Dated: May 3, 2006.
Carl E. Edlund,
P.E., Director, Multimedia Planning and Permitting Division, Region 6.

0
For the reasons set out in the preamble, 40 CFR part 261 is to be 
amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
1. The authority citation for part 261 continues to read as follows:

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


0
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 LLC......................  Baytown, TX..................   Spent Carbon (EPA Hazardous
                                                                                  Waste Nos. K027, K104, K111,
                                                                                  and K112) generated at a
                                                                                  maximum rate of 7,728 cubic
                                                                                  yards per calendar year after
                                                                                  May 16, 2006.
                                                                                 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-
                                                                                  butylphthalate-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 and the reports have
                                                                                  been approved by EPA.
                                                                                 (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 must 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.

[[Page 28278]]

 
                                                                                 (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 can 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
                                                                                  must 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 process
                                                                                  that generates 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.
                                                                                 As to the (those) identified
                                                                                  section(s) of this document
                                                                                  for which I cannot personally
                                                                                  verify its (their) truth and
                                                                                  accuracy, I certify as the
                                                                                  company official having
                                                                                  supervisory responsibility for
                                                                                  the persons who, acting under
                                                                                  my direct instructions, made
                                                                                  the verification that this
                                                                                  information is true, accurate
                                                                                  and complete.
                                                                                 If any of this information is
                                                                                  determined by EPA in its sole
                                                                                  discretion to be false,
                                                                                  inaccurate or incomplete, and
                                                                                  upon conveyance of this fact
                                                                                  to the company, I recognize
                                                                                  and agree that this exclusion
                                                                                  of waste will be void as if it
                                                                                  never had effect or to the
                                                                                  extent directed by EPA and
                                                                                  that the company will be
                                                                                  liable for any actions taken
                                                                                  in contravention of the
                                                                                  company's RCRA and CERCLA
                                                                                  obligations premised upon the
                                                                                  company's reliance on the void
                                                                                  exclusion.''
                                                                                 (6) Reopener:

[[Page 28279]]

 
                                                                                 (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 a
                                                                                  level higher than the
                                                                                  delisting level allowed by EPA
                                                                                  in granting the petition, then
                                                                                  the facility must report the
                                                                                  data, in writing, to EPA
                                                                                  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 EPA 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, EPA will make a
                                                                                  preliminary determination as
                                                                                  to whether the reported
                                                                                  information requires 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 EPA determines that the
                                                                                  reported information requires
                                                                                  action, EPA will notify the
                                                                                  facility in writing of the
                                                                                  actions it 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 explaining why the
                                                                                  proposed EPA action is not
                                                                                  necessary. The facility shall
                                                                                  have 10 days from the date of
                                                                                  EPA'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), EPA will issue a final
                                                                                  written determination
                                                                                  describing the actions that
                                                                                  are necessary to protect human
                                                                                  health and/or the environment.
                                                                                  Any required action described
                                                                                  in EPA's determination shall
                                                                                  become effective immediately,
                                                                                  unless EPA provides otherwise.
 
                                                  * * * * * * *
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[FR Doc. 06-4514 Filed 5-15-06; 8:45 am]
BILLING CODE 6560-50-P