[Federal Register Volume 84, Number 218 (Tuesday, November 12, 2019)]
[Proposed Rules]
[Pages 60975-60985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23830]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R10-RCRA-2019-0662; SW-FRL-10001-79-Region 10]


Hazardous Waste Management System; Proposed Exclusion for 
Identifying and Listing Hazardous Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

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SUMMARY: The Environmental Protection Agency (also, ``the Agency'' or 
``we'' in this preamble) is proposing to grant three petitions 
submitted jointly by Emerald Kalama Chemical, LLC (Emerald) and Fire 
Mountain Farms, Inc. (FMF) (Petitioners), in Lewis County, Washington 
to exclude (or ``delist'') a one-time amount up to 20,100 cubic yards 
of U019 (benzene) and U220 (toluene) mixed material from the list of 
federal hazardous wastes. These wastes are limited to those associated 
with closure of hazardous waste management units at three facilities 
owned and operated by FMF pursuant to closure plans to be approved by 
the Washington State Department of Ecology (Ecology). The Agency is 
proposing to grant the petition based on an evaluation of waste-
specific information provided by the Petitioners. This proposed 
decision, if finalized, conditionally excludes the petitioned waste 
from the requirements of hazardous waste regulations under the Resource 
Conservation and Recovery Act.

DATES: Comments must be received on or before December 12, 2019. 
Requests for an informal hearing must reach the EPA by November 27, 
2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
RCRA-2019-0662 using one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Mail: to Dr. David Bartus, Office of Air and Waste, EPA, 
Region 10, 1200 6th Avenue, Suite 155, M/S 15-H04, Seattle, Washington 
98101.
     Hand Delivery: to Dr. David Bartus, Office of Air and 
Waste, EPA, Region 10, 1200 6th Avenue, Suite 155, OAW-150, Seattle, 
Washington 98101. Such deliveries are only accepted during normal hours 
of operation. Please contact David Bartus at (206) 553-2804.
    Instructions: Direct your comments to Docket ID No. EPA-R10-RCRA-
2019-0662. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through www.regulations.gov 
or email. The www.regulations.gov website is an ``anonymous access'' 
system, which means the EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an email comment directly to the EPA without going through 
www.regulations.gov your email address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the internet. If you submit an electronic 
comment, the EPA recommends that you include your

[[Page 60976]]

name and other contact information in the body of your comment and with 
any physical media you submit. If the EPA cannot read your comment due 
to technical difficulties and cannot contact you for clarification, the 
EPA may not be able to consider your comment. Electronic files should 
avoid the use of special characters, any form of encryption, and be 
free of any defects or viruses.
    Any person may request an informal hearing on this proposed 
decision by filing a request with Timothy Hamlin, Director, Office of 
Land, Chemicals and Redevelopment Division, EPA, Region 10, 1200 6th 
Ave., Suite 155, M/S 15-H04, Seattle, Washington 98101. The request 
must contain the information prescribed in 40 Code of Federal 
Regulations CFR 260.20(d).
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information may not be publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy form. Publicly available docket materials are available 
either electronically through www.regulations.gov or in hard copy at 
the RCRA Records Center, 16th floor, U.S. EPA, Region 10, 1200 6th 
Avenue, Suite 155, M/S 16-C09, Seattle, Washington 98101. This facility 
is open from 8:30 a.m. to 4:00 p.m., Monday through Friday, excluding 
legal holidays. We recommend you telephone David Bartus at (206) 553-
2804 before visiting the Region 10 office. The public may copy material 
from the regulatory docket at 15 cents per page.

FOR FURTHER INFORMATION CONTACT:  Dr. David Bartus, EPA, Region 10, 
1200 6th Avenue, Suite 155, M/S 15-H04, Seattle, Washington 98070; 
telephone number: (206) 553-2804; fax number (206) 553-8509; email 
address: [email protected].
    As discussed in Section V below, Ecology is evaluating the 
Petitioners' petitions under state authority. Information on Ecology's 
action may be found at https://fortress.wa.gov/ecy/publications/SummaryPages/1907021.html.

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

I. Overview Information
II. Background
    A. What is are the listed wastes associated with this petition?
    B. What is a delisting petition?
    C. What factors did EPA consider in deciding whether to grant a 
delisting petition?
III. EPA's Evaluation of the Waste Information and Data
    A. What waste did the Petitioners petition EPA to delist?
    B. How did the Petitioners generate the waste?
    C. How did the Petitioners sample and analyze the petitioned 
waste?
    D. What were the results of EPA's analysis of the Petitioner's 
waste?
    E. How did the EPA evaluate the risk of delisting this waste?
    F. What are EPA's proposed findings regarding the petitioned 
wastes?
IV. Conditions for Exclusion
    A. How will the Petitioners manage the waste if it is delisted?
    B. What are the maximum allowable concentrations of hazardous 
constituents in the waste?
    C. How frequently must the Petitioners test the waste?
    D. What data must the Petitioners submit?
    E. What happens if the Petitioners fail to meet the conditions 
of the exclusion?
    F. What must the Petitioners do if the process changes?
V. When would the EPA finalize the proposed delisting exclusion?
VI. How would this action affect states?
VII. Statutory and Executive Order Reviews

I. Overview Information

    The EPA is proposing to grant three petitions submitted jointly by 
Emerald Kalama Chemical, LLC (Emerald) and Fire Mountain Farms, Inc 
(FMF) (Petitioners), in Lewis County, Washington to exclude (or 
``delist'') a one-time combined amount up to 20,100 cubic yards of U019 
(benzene) and U220 (toluene) hazardous wastes from the list of federal 
hazardous waste set forth in 40 Code of Federal Regulations CFR 
261.33.\1\ These three petitions apply to three separate facilities 
owned and operated by FMF, and each manage wastes that are sufficiently 
similar that the EPA is electing to propose its decision to grant the 
petitions concurrently through this Federal Register notice. The 
Petitioners claim that each of the petitioned wastes do not meet the 
criteria for which the EPA listed it, and that there are no additional 
constituents or factors which could cause the waste to be hazardous. 
These exclusions apply only to wastes associated with closure of 
hazardous waste management units at the three FMF facilities pursuant 
to an approved closure plan. The exclusion is effective when the wastes 
are removed from the respective hazardous waste management units, or 
otherwise generated pursuant to the corresponding approved closure 
plan.
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    \1\ The facility-specific waste volumes are documented in 
Section III.A.
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    Based on our review described in Section III, we propose to make a 
determination that the petitioned wastes are non-hazardous with respect 
to listed waste codes that originally applied. As part of our 
supporting analysis, we reviewed the description of the process which 
generated the wastes and the analytical data submitted by the 
Petitioners. We believe that the petitioned wastes do not meet the 
criteria for which the waste was originally listed, that they do not 
exhibit any hazardous waste characteristic, and that there are no other 
factors which might cause the waste to be hazardous. Accordingly, EPA 
is proposing to find that the petitioned wastes may be safely managed 
as non-listed hazardous wastes. EPA notes that while the burden of 
demonstrating that a delisted waste does not also exhibit a hazardous 
characteristic remains with the facility, the data provided by the 
Petitioners demonstrate that the candidate wastes do not exhibit a 
hazardous characteristic. Subject to state-only requirements within the 
state of Washington, or federally-authorized or state-only requirements 
in other states where the subject wastes may be disposed of, the 
petitioned wastes must be disposed of in a Subtitle D landfill which is 
permitted, licensed, or registered by a State to manage industrial 
solid waste.

II. Background

A. What are the listed wastes associated with this petition?

    The EPA published an amended list of discarded commercial chemical 
products, off-specification species, container residues and spill 
residues thereof on November 25, 1980 (45 FR 78541), as part of its 
final and interim final regulations implementing Sec.  3001 of Resource 
Conservation and Recovery Act (RCRA). The EPA has amended this list 
several times and published it in 40 CFR 261.33.
    We list these wastes as hazardous because: (1) They typically and 
frequently exhibit one or more of the characteristics of hazardous 
wastes identified in 40 CFR part 261 Subpart C (that is, ignitability, 
corrosivity, reactivity, and toxicity) or (2) they meet the criteria 
for listing contained in Sec.  261.11(a)(2) or (3).

B. What is a delisting petition?

    Individual waste streams may vary depending on raw materials, 
industrial processes, and other factors. Thus, while a waste from a 
source listed in the regulations as ``hazardous'' is by definition 
hazardous, a specific waste from an individual generating facility and 
from a source meeting the listing

[[Page 60977]]

description may produce wastes that vary significantly from the wastes 
EPA considered in establishing the waste listing.
    A procedure to exclude or delist a waste is provided in 40 CFR 
260.20 and 260.22 which allows a person or a facility to submit a 
petition to the EPA or to an authorized state demonstrating that a 
specific waste from a particular generating facility should not be 
regulated as hazardous.\2\
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    \2\ Washington State's promulgated regulations at WAC 173-303-
910(3) correspondence to the federal regulation. However, Washington 
State has not received final authorization to implement these 
regulations in lieu of federal program. As such, they are effective 
concurrent with 40 CFR 260.20 and 260.22 on a state-only basis.
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    In a delisting petition, the petitioner must show that a waste does 
not meet any of the criteria for listed wastes in 40 CFR 261.11 and 
that the waste does not exhibit any of the hazardous waste 
characteristics of ignitability, reactivity, corrosivity, or toxicity. 
The petitioner must present sufficient information for EPA to decide 
whether any factors in addition to those for which the waste was listed 
warrant retaining it as a hazardous waste. (See 40 CFR 260.22 and 42 
U.S.C. 6921(f).) EPA's basis for originally listing the wastes 
associated with this petition may be found at 45 FR 78532.
    If a delisting petition is granted, the specific waste(s) 
identified in the delisting will be excluded from the associated 
lists(s) of hazardous waste in 40 CFR part 261 Subpart D so long as 
conditions in the delisting are met. A waste which is so excluded, 
however, may still exhibit a characteristic and thus be a hazardous 
waste by operation of 40 CFR part 261 Subpart C. EPA notes that while 
the burden of demonstrating that a delisted waste does not also exhibit 
a hazardous characteristic remains with the facility, the data provided 
by the Petitioners demonstrate that the candidate wastes do not exhibit 
a hazardous characteristic.

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

    In reviewing this petition, we considered the original listing 
criteria and the additional factors required by the Hazardous and Solid 
Waste Amendments of 1984 (HSWA). See Sec.  222 of HSWA, 42 U.S.C. 
6921(f), and 40 CFR 260.22(d)(2) through (4). We evaluated the 
petitioned wastes against the listing criteria and factors cited in 
Sec.  261.11(a)(2) and (3).
    In addition to the criteria in 40 CFR 260.22(a), 261.11(a)(2) and 
(3), 42 U.S.C. 6921(f), and in the background documents for the listed 
wastes, EPA also considered any factors (including additional 
constituents) other than those for which we listed the waste if these 
additional factors could cause the waste to be hazardous.
    Our proposed decision to grant the petitions to delist the waste 
from the identified FMF facilities in Lewis County, Washington is based 
on our evaluation of the wastes for factors or criteria which could 
cause the waste to be hazardous. These factors included: (1) Whether 
the waste is considered acutely toxic; (2) the toxicity of the 
constituents; (3) the concentration of the constituents in the waste; 
(4) the tendency of the constituents to migrate and to bioaccumulate; 
(5) the persistence in the environment of any constituents once 
released from the waste; (6) plausible and specific types of management 
of the petitioned waste; (7) the quantity of waste produced; and (8) 
waste variability.
    The EPA must also consider as hazardous wastes mixtures containing 
listed hazardous wastes and wastes derived from treating, storing, or 
disposing of listed hazardous waste. See 40 CFR 261.3(a)(2)(iv) and 
(c)(2)(i), called the ``mixture'' and ``derived-from'' rules, 
respectively. Mixture and derived-from wastes are also eligible for 
exclusion but remain hazardous until excluded.

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

A. What waste did the Petitioners petition the EPA to delist?

    Emerald manufactures various organic chemicals used as artificial 
flavors and fragrances, food preservatives, plasticizers, and 
intermediates at their facility in Kalama, Washington. Most of the 
chemicals produced are derived from toluene or from the oxidation 
products of toluene, including benzoic acid and benzaldehyde. 
Additional products are produced as derivatives of benzoic acid and 
benzaldehyde. Products are typically purified by continuous or batch 
distillation. In conjunction with its manufacturing processes, Emerald 
operates an industrial wastewater treatment system, consisting of an 
anaerobic digestion process and an aerobic oxidation system, both of 
which are biological treatment systems very similar to municipal 
wastewater treatment systems. This treatment system produces industrial 
wastewater treatment plant biological solids (IWBS). As documented in 
the Petitioner's delisting petition, the IWBS designates as U019 
(benzene) and U220 (toluene).
    FMF operates receiving, storage, treatment, and land application 
facilities in Lewis County, Washington for wastewater treatment plant 
treatment solids received from municipal, industrial, and private 
wastewater treatment plants. FMF is not permitted or otherwise 
authorized to manage, treat, or dispose of hazardous or dangerous 
wastes.\3\ Emerald contracted with FMF to land apply Emerald's IWBS 
beginning in October 1995. FMF mixed Emerald's IWBS with treatment 
solids from other facilities and land applied or stored the mixed IWBS/
treatment solids wastes at several FMF facilities. The RCRA rules 
require that listed hazardous wastes, when mixed with other materials, 
continue to be regulated as listed hazardous wastes (40 CFR 261.3). The 
mixed IWBS/treatment solids wastes are currently stored at three FMF 
facilities: Burnt Ridge located at 856 Burnt Ridge Road, Onalaska, 
Washington; Newaukum Prairie located at 349 State Route 508, Chehalis, 
Washington; and Big Hanaford located at 307 Big Hanaford Road, 
Centralia, Washington.\4\ Under a separate action (See footnote 4), the 
Washington State Department of Ecology is requiring that Emerald and 
FMF remove these wastes from the three units according to closure plans 
approved pursuant to WAC 173-303-610.
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    \3\ Within Ecology's authorized hazardous waste program, 
``hazardous'' refers to those wastes regulated by the federal RCRA 
program. ``Dangerous'' refers to additional wastes that Ecology's 
regulates as a broader in scope provision of their program.
    \4\ The Washington State Department of Ecology has entered into 
a litigation settlement (Docket Entry 3) with Fire Mountain Farms 
and Emerald-Kalama that, in part, requires closure of the units 
managing dangerous waste considered int his proposed delisting rule. 
In this context, today's proposed delisting rule is a ``one-time'' 
delisting that, if finalized, will allow the fixed volume of wastes 
to be generated pursuant to closure of these three units as non-
hazardous.
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    The Petitioners have requested that up to 4,700 cubic yards at the 
Burnt Ridge facility, 10,400 cubic yards at the Newaukum Prairie 
facility, and 5,000 cubic yards at the Big Hanaford facility of IWBS/
treatment solids be excluded from the list of hazardous wastes.\5\
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    \5\ The delisting petitions submitted by the Petitioners 
requested exclusion of a waste volumes less than those cited in this 
proposed rule. Because these wastes will be managed on a one-time 
basis as part of closure of the respective waste management units at 
the three FMF facilities, the EPA and Ecology have determined that 
it is appropriate to propose exclusion of a waste volume double that 
in the respective delisting petitions as a safety measure that will 
account for any additional wastes that may be generated pursuant to 
closure activities such as liners, debris, etc. The EPA notes that 
the requested quantity of wastes in the delisting petition itself 
was expressed on a mass (ton) basis. The ``Waste Characterization 
Plan, Fire Mountain Farms, Mixed Material Storage Units, Lewis 
County, Washington'' included in the petition, however, estimates 
the quantity of waste on a volumetric basis. The expanded waste 
volume in this proposed delisting reflect a doubling of the 
volumetric waste volumetric estimate documented in the Waste 
Characterization Plan.

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[[Page 60978]]

B. How did the Petitioners generate the waste?

    In a delisting petition for its IWBS wastes separate from today's 
proposed exclusions, Emerald documented that its industrial wastewater 
treatment system from which IWBS is derived manages wastewaters from 
multiple sources within the facility. The first source consists of 
contaminated groundwater from an extensive groundwater recovery system 
to prevent contaminated water from leaving the plant site. Water pumped 
from the North Impact Area (NIA), West Impact Area (WIA), and 
Intermediate Sand Recovery Wells (ISRW) contains commercial product 
toluene from historical releases and therefore the IWBS carry the 
listed hazardous waste code U220 (toluene). Historical data from 2014 
through 2017 indicates that an average of 33.1 million gallons per year 
with a maximum of 38.6 million gallon per year was treated in the 
wastewater treatment unit (WWTU) that generates IWBS. The second source 
consists of stormwater that falls on the manufacturing process areas of 
the facility, which may become contaminated by spills or releases of 
the various raw materials, intermediates, products or byproducts of its 
manufacturing operations. The third source consists of process 
wastewater from manufacturing processes. These second and third sources 
may be impacted by trace amounts of pure product benzene from de 
minimus spills that are captured by the treatment system; therefore, 
the IWBS from the second and third source categories carry the listed 
hazardous waste code U019 (benzene).
    Emerald provided the EPA with a detailed process flow diagram 
(Docket Entry 1) of the overall wastewater management system that 
documents the source of all wastewaters from which the candidate IWBS 
are generated and the various management processes that are applied to 
the wastewaters. Generally, process wastewater expected to have higher 
quantities of organic constituents from process units is routed to 
either the anaerobic digesters (ANTs) or to the aerobic digesters 
(BIOX), depending upon the types and concentrations of chemicals 
present. All of the effluent from ANTs is routed to BIOX for final 
treatment. Groundwater and stormwater \6\ with a low chemical oxygen 
demand (COD) are routed to the aerobic digesters (BIOX). This process 
flow arrangement, including flexibility to re-route wastewaters 
depending on their chemical makeup, helps ensure that concentrated free 
product from manufacturing process wastes or from spills is not 
introduced into the balance of the wastewater treatment system, and 
that the concentration of waste constituents entering the treatment 
system is maintained in a range that fosters microbial degradation. 
Wastewaters from the API separator are then routed to the aerobic 
digester system. The use of the API separator for wastewaters expected 
to have higher levels of organic constituents helps ensure that 
significant excursions in waste composition do not adversely affect 
performance of the wastewater treatment system. The effluent of the 
ANTS system is then routed to the aerobic digester and sludge 
filtration systems. Groundwater and stormwater expected to have lower 
COD levels bypass the API separator and are fed directly to the aerobic 
digester treatment system.
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    \6\ Emerald also provide the EPA with a map of the facility 
indicating areas where stormwater is collected from various areas of 
the facility. See Docket Entry 2.
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    At the Burnt Ridge facility, FMF mixed IWBS from Emerald, treatment 
solids from municipal and industrial wastewater treatment plants, and 
cow manure water runoff from a barn in a surface impoundment that has 
approximate dimensions of 220 feet on each side and 14 feet deep. Once 
FMF mixed the IWBS with the other material, the mixed material became 
regulated as U019 and U220 listed hazardous wastes as noted earlier.
    At the Newaukum Prairie facility, FMF mixed IWBS from Emerald and 
treatment solids from municipal and industrial wastewater treatment 
plants in a surface impoundment that has approximate dimensions of 220 
feet on each side and 12 feet deep. Once FMF mixed the IWBS with the 
other material, the mixed material became regulated as U019 and U220 
listed hazardous wastes.
    At the Big Hanaford facility, FMF mixed IWBS from Emerald and 
treatment solids from municipal and private wastewater treatment plants 
in a roofed concrete panel storage unit that has approximate dimensions 
of 100 feet by 60 feet and 11.5 feet deep. Once FMF mixed the IWBS with 
the other material, the mixed material became regulated as U019 and 
U220 listed hazardous wastes.

C. How did the Petitioners sample and analyze the petitioned wastes?

    FMF conducted an investigation of the wastes at each of the three 
storage units in September 2014.\7\ Three composite samples of the 
mixed IWBS/treatment solids wastes were collected from each storage 
unit. At Burnt Ridge and Newaukum Prairie, each composite sample 
consisted of nine grab samples collected from various depths. Each 
composite sample collected at Big Hanaford consisted of six grab 
samples collected from various depths.
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    \7\ This investigation is documented in the first report in 
Appendix C of the three delisting petitions (Docket Entries 7-9).
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    Each composite sample was analyzed for the following constituents 
or constituent groups: Volatile organic compounds (VOCs), semivolatile 
organic compounds (SVOCs), total metals, total cyanide, and total 
solids. The specific analytes included in the analysis are defined by 
the analytical method used for each group.
    In addition, two composite samples from the Newaukum Prairie 
storage unit and one composite sample each from the Burnt Ridge and Big 
Hanaford storage units were analyzed for the following parameters or 
constituent groups: Pesticides; polychlorinated biphenyl (PCB) 
Aroclors; dioxins and furans, reported as 2,3,7,8-
tetrachlorodibenzodioxin toxicity equivalence quotient (2,3,7,8-TCDD 
TEQ); ammonia; Total Kjeldahl Nitrogen (TKN); pH, nitrite; and nitrate 
+ nitrite (the concentration of nitrate was calculated by the 
analytical laboratory). Fourteen grab samples from the Newaukum Prairie 
storage unit and seven grab samples each from the Burnt Ridge and Big 
Hanaford storage units were analyzed for total fecal coliform.
    Emerald conducted additional sampling of the mixed IWBS/treatment 
solids wastes at each of the three storage units in August and October 
2017.\8\ Emerald performed the additional sampling based on the 
preliminary delisting levels and the September 2014 investigation. 
Samples from the storage units at Burnt Ridge, Newaukum Prairie, and 
Big Hanaford were analyzed for selected volatile organic compounds 
(acetone, benzene, methanol, and toluene), total solids, and pH. 
Samples from Big Hanaford were analyzed for total acrylonitrile; 
cobalt; 4-methylphenol; 2,4-dinitrotoluene; 2,6-dinitrotoluene; and 
naphthalene.
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    \8\ Results of these sampling activities are documented in the 
third report in Appendix C of the three delisting petitions (Docket 
Entries 7-9).

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[[Page 60979]]

D. What were the results of EPA's analysis of the Petitioner's waste?

    The first step in the EPA's analysis of the petitioned wastes was 
to establish a list of potential constituents of concern (COCs) to 
guide further analysis of the waste and to establish initial delisting 
exclusion criteria. The EPA applied four criteria for identifying 
potential constituents of concern: (1) Whether the constituent is used 
as an input to, or created as an intermediate, byproduct or finished 
product from Emerald's production processes; (2) whether the IWBS 
designates as hazardous for a particular constituent; (3) the expected 
frequency of occurrence in the IWBS; and (4) the toxicity of the 
constituent of concern. The EPA also considered results of the 2014 
waste characterization study in Appendix C of the three petitions, as 
well as any additional constituents that may be typically found in 
municipal wastewater treatment biosolids.
    The EPA first considered organic COCs. Based on the hazardous waste 
codes associated with wastewater that ultimately results in generation 
of IWBS (D018, U019, U220, U154 and U001), the EPA determined that 
benzene, toluene, methanol and acetaldehyde are COCs.\9\ The EPA notes 
that benzene is generally regarded as difficult to treat and is an 
excellent indicator of overall performance of the WWTU processes, and 
the ability of the WWTU to effectively treat other organic constituents 
other than benzene. Based on principal products of Emerald's processes, 
the EPA determined that additional organic constituents including 
benzaldehyde, benzoic acid, formic acid, benzyl alcohol, and phenol 
should be retained as COCs. While at least some of these constituents 
are associated with products for human consumption or exposure, they 
have a level of toxicity that warrants retention as COCs for purposes 
of evaluating the candidate waste stream. Although several additional 
organic constituents are associated with Emerald's production 
processes, they are associated with products for human consumption or 
exposure, such as food preservatives and vitamins, fragrances and 
perfumes, and sunscreens, and do not have a degree of toxicity that 
warrants retention as COCs (Docket Entry 17). In addition, most if not 
all these additional organic constituents are highly amenable to 
biological treatment in the WWTS and are not expected to be present in 
the IWBS at levels anywhere near health-based levels that would be of 
concern in the delisting process.
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    \9\ As noted in the delisting petition, IWBS designate only for 
U019 (benzene) and U220 (toluene) because due to an exception to 
RCRA's derived from rule, certain codes applicable to the wastewater 
do not carry through to the IWBS. However, as part of its evaluation 
of the IWBS waste stream and identification of COCs, the EPA also 
considered hazardous waste codes applicable to the wastewaters 
managed by the WWTU generating IWBS.
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    Emerald's production process uses a range of catalysts, including 
several metallic catalysts that include cobalt, copper and nickel. On 
this basis, cobalt, copper and nickel are identified as constituents of 
concern. Although these three metals are not hazardous constituents, 
they are retained as ``other factors'' that may cause the waste to be 
retained as hazardous. Other metallic constituents are reported to have 
been detected in the IWBS waste stream that do not have a clear source 
related to Emerald's organic manufacturing process. These constituents 
include barium and zinc. Barium is a hazardous constituent and is 
present at levels in the IWBS so barium is retained as an ``other 
factor'' that may cause the waste to be retained as hazardous. Zinc is 
a common contaminant in industrial wastewater and is found in the IWBS 
at concentrations as high as 1,350 ppm dry weight, so zinc is retained 
as a constituent as an ``other factor'' that may cause the waste to be 
retained as hazardous.
    In Emerald's production process, cobalt is used as a catalyst in 
both its metallic form (sponge cobalt) and as cobalt acetate. Although 
cobalt acetate poses environmental and human health risks, the acetate 
functional group is expected to be readily degraded in the WWTS, 
leaving metallic cobalt in the IWBS. Further, cobalt acetate is soluble 
in water, so that any remaining cobalt acetate that is not degraded to 
metallic cobalt in the WWTS is likely to partition into the effluent 
wastewater managed separately from the IWBS. Thus, all forms of cobalt 
are considered to be metallic for purposes of the delisting evaluation 
of Emerald's IWBS.
    Emerald's IWBS only constitute a small percentage (between 5% and 
8%) of the total mixed IWBS/treatment solids wastes at each of the 
three storage units.
    With respect to the biosolids component of the petitioned waste, 
the 2014 waste characterization report in Appendix C of the delisting 
petitions considered a very broad range of potential constituents of 
concern. The EPA first compared these characterization data reports to 
preliminary delisting levels (See the second report in Appendix C of 
the delisting petitions) calculated using the Delisting Risk Assessment 
Software (DRAS) model.\10\ Any detected constituents at concentrations 
less than the preliminary delisting levels were removed from further 
consideration.\11\ The remaining detected constituents exceeding a 
preliminary delisting level were retained for further evaluation in the 
2017 waste characterization plan, also included in the second report in 
Appendix C of the delisting petitions. Results from this latter 
characterization work were then used as input to the DRAS modelling 
program discussed in the following section. After consideration of 
constituents typically found in biosolids (for example, as documented 
in the U.S. EPA National Sewage Sludge Survey available at https://www.epa.gov/biosolids/sewage-sludge-surveys), the EPA determined that 
no additional constituents of concern should be added for consideration 
in the delisting process.
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    \10\ Preliminary delisting levels were obtained for all DRAS 
constituents on a unit-specific basis considering the expected waste 
volume associated with each unit to be closed.
    \11\ The specific decision criteria that considered total 
concentrations, bounding leachability, and laboratory analysis 
detection limits are documented in the second report in Appendix C 
of the delisting petitions.
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    The final list of constituents of concern evaluated in the 
delisting process are documented in Tables 2-4 below.

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

    For this delisting determination, we evaluated the risk that the 
waste would be disposed of as a non-hazardous waste in a RCRA Subtitle 
D landfill and we considered transport of waste constituents through 
ground water, surface water and air. We evaluated the Petitioner's 
analysis of petitioned waste using the DRAS software to predict the 
concentration of hazardous constituents that might be released from the 
petitioned waste and to determine if the waste would pose a threat to 
human health and the environment. The DRAS software and associated 
documentation can be found at www.epa.gov/hw/hazardous-waste-delisting-risk-assessment-software-dras.
    To predict the potential for release to groundwater from landfilled 
wastes and subsequent routes of exposure to a receptor, the DRAS uses 
dilution attenuation factors derived from the EPA's Composite Model for 
leachate migration with Transformation Products. From a release to 
ground water, the DRAS considers routes of exposure to a human receptor 
through ingestion of contaminated groundwater,

[[Page 60980]]

inhalation from groundwater while showering and dermal contact from 
groundwater while bathing.
    From a release to surface water by erosion of waste from an open 
landfill into storm water run-off, DRAS evaluates the exposure to a 
human receptor by fish ingestion and ingestion of drinking water. From 
a release of waste particles and volatile emissions to air from the 
surface of an open landfill, DRAS considers routes of exposure of 
inhalation of volatile constituents, inhalation of particles, and air 
deposition of particles on residential soil and subsequent ingestion of 
the contaminated soil by a child. The technical support document and 
the user's guide to DRAS are available at https://www.epa.gov/hw/hazardous-waste-delisting-risk-assessment-software-dras.
    The EPA used the following inputs to its DRAS analysis of the 
Petitioner's wastes, as summarized in Table 2.

              Table 1--Emerald and FMF Delisting DRAS Input
------------------------------------------------------------------------
    DRAS Input parameter              Value              Assumptions
------------------------------------------------------------------------
Waste Management Unit Type..  Landfill \12\.......  Waste planned for
                                                     disposal in a
                                                     municipal solid
                                                     waste landfill.
Waste Volume--one-year batch  4,700 cubic yards     Conservative
                               for Burnt Ridge;      estimation value
                               10,400 cubic yards    based on facility-
                               for Newaukum          specific
                               Prairie; 5,000        information.
                               cubic yards for Big
                               Hanaford.
Waste Management Unit Active  One Year Batch......  N/A--DRAS does not
 Life.                                               allow a year input
                                                     for the One Year
                                                     Batch.
Target risk--carcinogenic     1 x 10-5............  Based on risk ranges
 risk level.                                         in the EPA's RCRA
                                                     Delisting Technical
                                                     Support Document
                                                     (2008).
Target risk--health quotient  1.0.................  Based on risk ranges
                                                     in the EPA's RCRA
                                                     Delisting Technical
                                                     Support Document
                                                     (2008).
------------------------------------------------------------------------

    At a target cancer risk of 1 x 10-\5\ and a target 
hazard quotient of 1.0, the DRAS program determined maximum allowable 
concentrations for each constituent in both the waste and the leachate. 
The EPA used the maximum estimated waste volumes and the maximum 
reported total and estimated leachate concentrations as inputs to 
estimate the constituent concentrations in the ground water, soil, 
surface water or air. Tables 2, 3, and 4 document the constituent-
specific maximum total and TCLP sample results used as input to the 
DRAS analysis, and the resulting modeling results from DRAS for the 
Burnt Ridge, Newaukum Prairie, and Big Hanaford storage units, 
respectively.
---------------------------------------------------------------------------

    \12\ Although two of the petitioned waste streams originate in a 
surface impoundment, the wastes being delisted will be removed from 
the surface impoundments through an approved closure process. The 
removed wastes will be managed in accordance with the closure plan 
to allow disposal in a solid waste landfill. Therefore, the waste 
management unit used for modelling waste performance using DRAS is 
``Landfill'' for all three units.

                                            Table 2--Sampling Data and DRAS Modeling Results for Burnt Ridge
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Maximum observed                                          Modeling results
                                             concentration \1\       -----------------------------------------------------------------------------------
                                     --------------------------------           Total concentrations                       TCLP concentration
       Constituent of concern                                        -----------------------------------------------------------------------------------
                                      Total \1\ (mg/    TCLP (mg/L)       Limiting                                  Limiting
                                            kg)             \4\         concentration    Limiting pathway \3\     concentration    Limiting pathway \3\
                                                                         (mg/kg) \2\                               (mg/L) \ 2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Barium..............................             N/A             N/A        21,100,000  Air Particulate                    1,090  Maximum Contaminant
                                                                                         Inhalation.                               Level.
Cobalt..............................              48           0.108            94,400  Air Particulate                     6.28  Groundwater Ingestion.
                                                                                         Inhalation.
Copper..............................             417             N/A        18,200,000  Fish Ingestion........               716  Maximum Contaminant
                                                                                                                                   Level.
Nickel..............................              45             N/A         3,540,000  Air Particulate                      408  Groundwater Ingestion.
                                                                                         Inhalation.
Zinc................................             969             N/A        47,100,000  Fish Ingestion........             6,170  Groundwater Ingestion.
Benzaldehyde........................             N/A             N/A     2,320,000,000  Soil Ingestion........             1,760  Groundwater Ingestion.
Benzene.............................         0.00101             N/A         1,600,000  Air Volatile                        2.35  Maximum Contaminant
                                                                                         Inhalation.                               Level.
Benzoic Acid........................             N/A             N/A    83,100,000,000  Fish Ingestion........            70,400  Groundwater Ingestion.
Formic Acid.........................             N/A             N/A         8,080,000  Air Volatile                       1,130  Groundwater
                                                                                         Inhalation.                               Inhalation.
Benzyl alcohol......................             N/A             N/A    11,600,000,000  Soil Ingestion........             8,800  Groundwater Ingestion.
Methanol............................         <0.01 U             N/A    11,600,000,000  Soil Ingestion........             8,800  Groundwater Ingestion.
Phenol..............................        <0.310 U             N/A     6,950,000,000  Soil Ingestion........             5,280  Groundwater Ingestion.
Toluene.............................           0.035             N/A       369,000,000  Fish Ingestion........               460  Maximum Contaminant
                                                                                                                                   Level.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Maximum concentration documented in the Petitioner's Burnt Ridge delisting petition, Tables B-1, B-3, and B-4.
\2\ The Limiting Concentration is the lowest risk-based concentration developed in DRAS for the potential receptor pathways and specified target risk
  levels. See text in Section IV.C for the EPA's consideration of limiting concentrations exceeding 1,000,000 mg/kg for total concentrations or
  1,000,000 mg/L for TCLP concentrations.
\3\ The Limiting Pathway is the corresponding potential receptor pathway for the Limiting Concentration.
\4\ For detected constituents, the maximum analytical result was used. For non-detect constituents (annotated with a ``U''), the practical quantitation
  limit (PQL) was used.


[[Page 60981]]


                                          Table 3--Sampling Data and DRAS Modeling Results for Newaukum Prairie
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Maximum observed                                          Modeling results
                                             concentration \1\       -----------------------------------------------------------------------------------
                                     --------------------------------           Total concentrations                       TCLP concentration
       Constituent of concern                                        -----------------------------------------------------------------------------------
                                      Total \1\ (mg/    TCLP (mg/L)       Limiting                                  Limiting
                                            kg)             \4\         concentration    Limiting pathway \3\     concentration    Limiting pathway \3\
                                                                         (mg/kg) \2\                               (mg/L) \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Barium..............................             N/A             N/A        11,000,000  Air Particulate                      498  Maximum Contaminant
                                                                                         Inhalation.                               Level.
Cobalt..............................              89           0.184            49,100  Air Particulate                     2.92  Groundwater Ingestion.
                                                                                         Inhalation.
Copper..............................             503             N/A         9,290,000  Fish Ingestion........               332  Maximum Contaminant
                                                                                                                                   Level.
Nickel..............................              30             N/A         1,840,000  Air Particulate                      184  Groundwater Ingestion.
                                                                                         Inhalation.
Zinc................................           1,060             N/A        24,000,000  Fish Ingestion........             2,820  Groundwater Ingestion.
Benzaldehyde........................             N/A             N/A     1,210,000,000  Soil Ingestion........               809  Groundwater Ingestion.
Benzene.............................       <0.0039 U             N/A           955,000  Air Volatile                        1.08  Maximum Contaminant
                                                                                         Inhalation.                               Level.
Benzoic Acid........................             N/A             N/A    42,500,000,000  Fish Ingestion........            32,400  Groundwater Ingestion.
Formic Acid.........................             N/A             N/A         4,830,000  Air Volatile                         519  Groundwater
                                                                                         Inhalation.                               Inhalation.
Benzyl alcohol......................             N/A             N/A     6,060,000,000  Soil Ingestion........             4,040  Groundwater Ingestion.
Methanol............................         <0.01 U             N/A     6,060,000,000  Soil Ingestion........             4,040  Groundwater Ingestion.
Phenol..............................            0.63             N/A     3,640,000,000  Soil Ingestion........             2,430  Groundwater Ingestion.
Toluene.............................             150             N/A       189,000,000  Fish Ingestion........               211  Maximum Contaminant
                                                                                                                                   Level.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Maximum concentration documented in the Petitioner's Newaukum Prairie delisting petition, Tables B-1, B-3, and B-4.
\2\ The Limiting Concentration is the lowest risk-based concentration developed in DRAS for the potential receptor pathways and specified target risk
  levels. See text in Section IV.C for the EPA's consideration of limiting concentrations exceeding 1,000,000 mg/kg for total concentrations or
  1,000,000 mg/L for TCLP concentrations.
\3\ The Limiting Pathway is the corresponding potential receptor pathway for the Limiting Concentration.
\4\ For detected constituents, the maximum analytical result was used. For non-detect constituents (annotated with a ``U''), the practical quantitation
  limit (PQL) was used.


                                            Table 4--Sampling Data and DRAS Modeling Results for Big Hanaford
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Maximum observed                                          Modeling results
                                             concentration \1\       -----------------------------------------------------------------------------------
                                     --------------------------------           Total concentrations                       TCLP concentration
       Constituent of concern                                        -----------------------------------------------------------------------------------
                                      Total \1\  (mg/   TCLP (mg/L)       Limiting                                  Limiting
                                            kg)             \4\         concentration    Limiting pathway \3\     concentration    Limiting pathway \3\
                                                                         (mg/kg) \2\                               (mg/L) \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Barium..............................             N/A             N/A        20,100,000  Air Particulate                    1,030  Maximum Contaminant
                                                                                         Inhalation.                               Level.
Cobalt..............................             165            1.10            89,900  Air Particulate                     5.92  Groundwater Ingestion.
                                                                                         Inhalation.
Copper..............................             521             N/A        17,300,000  Fish Ingestion........               674  Maximum Contaminant
                                                                                                                                   Level.
Nickel..............................              42             N/A         3,370,000  Air Particulate                      384  Groundwater Ingestion.
                                                                                         Inhalation.
Zinc................................           1,100             N/A        44,700,000  Fish Ingestion........             5,800  Groundwater Ingestion.
Benzaldehyde........................             N/A             N/A     2,210,000,000  Soil Ingestion........             1,660  Groundwater Ingestion.
Benzene.............................         0.00115             N/A         1,530,000  Air Volatile                        2.21  Maximum Contaminant
                                                                                         Inhalation.                               Level.
Benzoic Acid........................             N/A             N/A    78,900,000,000  Fish Ingestion........            66,300  Groundwater Ingestion.
Formic Acid.........................             N/A             N/A         7,760,000  Air Volatile                       1,060  Groundwater
                                                                                         Inhalation.                               Inhalation.
Benzyl alcohol......................             N/A             N/A    11,000,000,000  Soil Ingestion........             8,290  Groundwater Ingestion.
Methanol............................         <0.01 U             N/A    11,000,000,000  Soil Ingestion........             8,290  Groundwater Ingestion.
Phenol..............................              23             N/A     6,620,000,000  Soil Ingestion........             4,970  Groundwater Ingestion.
Toluene.............................             120             N/A       350,000,000  Fish Ingestion........               433  Maximum Contaminant
                                                                                                                                   Level.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Maximum concentration documented in the Petitioner's Big Hanaford delisting petition, Tables B-1 and B-3.
\2\ The Limiting Concentration is the lowest risk-based concentration developed in DRAS for the potential receptor pathways and specified target risk
  levels. See text in Section IV.C for the EPA's consideration of limiting concentrations exceeding 1,000,000 mg/kg for total concentrations or
  1,000,000 mg/L for TCLP concentrations.
\3\ The Limiting Pathway is the corresponding potential receptor pathway for the Limiting Concentration.
\4\ For detected constituents, the maximum analytical result was used. For non-detect constituents (annotated with a ``U''), the practical quantitation
  limit (PQL) was used.

F. What are EPA's proposed findings regarding the petitioned wastes?

    The maximum reported concentrations of the hazardous constituents 
found in these wastes are presented in the tables above. The tables 
also present the maximum allowable concentrations, above which the 
waste is not excluded from the applicable hazardous waste listings.
    We therefore propose to conclude that the Petitioner's mixed IWBS/
treatment solids wastes are not a substantial or potential hazard to 
human health and the environment when disposed of in a Subtitle D 
landfill. Further, the data presented by the Petitioners in their 
petitions support the EPA's proposed conclusion that the petitioned 
waste does not exhibit any hazardous characteristic for which the waste 
is listed, and that there are no other factors that would warrant 
retaining the waste as hazardous. On this basis, we propose to grant 
the Petitioner's petitions to delist these wastes. If this exclusion is 
finalized, and subject to the conditions of the final delisting, the 
Petitioners must dispose of these wastes in a Subtitle D landfill 
permitted or licensed by a state and will remain obligated to verify 
that the wastes continue to meet the allowable concentrations set forth 
here. The Petitioners must also to demonstrate that the wastes do not 
exhibit any hazardous characteristics pursuant to 40 CFR part 261 
Subpart C. The Petitioners may make this demonstration based on the 
existing characterization data provided in the delisting petition. As 
noted in Section II.B, the data provided by the Petitioners demonstrate 
that the candidate wastes do not exhibit a hazardous characteristic.

IV. Conditions for Exclusion

A. How will the Petitioners manage the waste if it is delisted?

    If the petitioned wastes are delisted as proposed, the Petitioners 
must dispose of them in a Subtitle D landfill which is permitted, 
licensed, or registered by a state to manage industrial waste.

[[Page 60982]]

B. What are the maximum allowable concentrations of hazardous 
constituents in the waste?

    Concentrations of the following constituents measured in the wastes 
located at FMF's Burnt Ridge, Newaukum Prairie, and Big Hanaford 
facilities, respectively, must not exceed the concentrations in Table 
5.

                                   Table 5--Verification Constituents and Compliance Concentrations DRAS Model Output
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Burnt Ridge                   Newaukum Prarie                  Big Hanaford
                       Constituent                       -----------------------------------------------------------------------------------------------
                                                           Total (mg/kg)    TCLP (mg/l)    Total (mg/kg)    TCLP (mg/l)    Total (mg/kg)    TCLP (mg/l)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Barium..................................................             N/A           1,090             N/A             498             N/A           1,030
Cobalt..................................................          94,400            6.28          49,100            2.92          89,900            5.92
Copper..................................................             N/A             716             N/A             332             N/A             674
Nickel..................................................             N/A             408             N/A             184             N/A             384
Zinc....................................................             N/A           6,170             N/A           2,820             N/A           5,800
Benzaldehyde............................................             N/A           1,760             N/A             809             N/A           1,660
Benzene.................................................             N/A            2.35             N/A            1.08             N/A            2.21
Benzoic Acid............................................             N/A          70,400             N/A          32,400             N/A          66,300
Formic Acid.............................................             N/A           1,130             N/A             519             N/A           1,060
Benzyl alcohol..........................................             N/A           8,800             N/A           4,040             N/A           8,290
Methanol................................................             N/A           8,800             N/A           4,040             N/A           8,290
Phenol..................................................             N/A           5,280             N/A           2,430             N/A           4,970
Toluene.................................................             N/A             460             N/A             211             N/A             433
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The EPA notes that in multiple instances the maximum allowable 
total constituent concentrations provided by the DRAS model exceed 100% 
of the waste--these DRAS results are an artifact of the risk 
calculations that do not have physical meaning. In instances where DRAS 
predicts a maximum constituent greater than 100 percent of the waste 
(that is, greater than 1,000,000 mg/kg or mg/L, respectively, for total 
and TCLP concentrations), the EPA is not proposing to require the 
Petitioners to perform sampling and analysis for that constituent and 
sampling type (total or TCLP). In these instances, the corresponding 
entry in Table 5 above is ``N/A.''

C. How frequently must the Petitioners test the waste?

    The Petitioner's delisting petitions did not provide complete 
sampling data for some constituents that EPA has retained as 
constituents of concern. More specifically, characterization data for 
barium, benzaldehyde, benzoic acid, formic acid, and benzyl alcohol, 
which are retained as verification constituents, do not have any 
existing characterization data. Therefore, the candidate wastes are 
excluded only if the Petitioners analyze three representative composite 
samples of the mixed IWBS/treatment solids wastes from each FMF 
facility for these constituents prior to the start of closure 
activities to demonstrate that the constituents of concern in the 
petitioned waste do not exceed the concentrations of concern in Section 
IV.C above. The Petitioners need only sample an extract of the wastes 
from EPA SW-846 Method 1311 for purposes of comparison to the TCLP 
standard in Table 5 and Condition 1 of the proposed amendments to 40 
CFR part 261. If results of any composite sample do not reflect 
compliance with delisting exclusion limits, the EPA may require the 
Petitioners to conduct additional verification sampling to better 
define the volume of waste with waste constituent concentrations 
exceeding the delisting exclusion limits. The EPA believes that this 
sampling rate will provide an appropriate level of certainty for 
determining whether or not all delisted waste satisfy the delisting 
criteria presented in Table 5 above. The Petitioners must use methods 
with appropriate analytical sensitivity quality control procedures, as 
documented in a written quality assurance project plan. EPA publication 
SW-846 Method 1311 must be used for generation of the leachate extract 
used in the testing of the subject waste. SW-846 Method 1311 is 
incorporated by reference in 40 CFR 260.11.
    A total analysis of the waste (accounting for any filterable 
liquids and the dilution factor inherent in the TCLP method) may be 
used to estimate the TCLP concentration as provided for in section 1.2 
of Method 1311.

D. What data must the Petitioners submit?

    The Petitioners must submit the data obtained through verification 
testing to U.S. EPA Region 10, Office of Land, Chemicals and 
Redevelopment, 1200 6th Avenue, Suite 155, M/S 15-H04, Seattle, 
Washington 98101 within 10 days after receiving the final results from 
the laboratory. The Petitioners must make those records available for 
inspection. All data must be accompanied by a signed copy of the 
certification statement in 40 CFR 260.22(i)(12). Provided that the data 
demonstrate compliance with the verification standards in Condition 1 
of the delisting rule, no further action is required of the 
Petitioners.

E. What happens if the Petitioners fail to meet the conditions of the 
exclusion?

    If the Petitioners violate the terms and conditions established in 
the exclusion, the Agency may start procedures to withdraw the 
exclusion. Additionally, the terms of the exclusion provide that 
``[a]ny waste volume for which representative composite sampling does 
not reflect full compliance with the exclusion criteria in Condition 1 
must continue to be managed as hazardous.''
    If the verification testing of the waste does not demonstrate 
compliance with the delisting concentrations described in section IV.C 
above, or other data (including but not limited to leachate data or 
groundwater monitoring data from the final land disposal facility) 
relevant to the delisted waste indicates that any constituent is at a 
concentration in waste above specified delisting verification 
concentrations in Table 5, the Petitioners must notify the Agency 
within 10 days, or such later date as the EPA may agree to in writing, 
after receiving the final verification testing results from the 
laboratory or of first possessing or being made aware of other relevant 
data. The EPA may

[[Page 60983]]

require the Petitioners to conduct additional verification sampling to 
better define the particular volume of wastes within the affected unit 
that does not fully satisfy delisting criteria. For any volume of 
wastes for which the corresponding representative sample(s) do not 
reflect full compliance with delisting exclusion levels, the exclusion 
by its terms does not apply, and the waste must be managed as 
hazardous.
    The EPA has the authority under RCRA and the Administrative 
Procedures Act, 5 U.S.C. 551 (1978) et seq. to reopen a delisting 
decision if we receive new information indicating that the conditions 
of this exclusion have been violated or are otherwise not being met.

F. What must the Petitioners do if the process changes?

    Since the wastes that are the subject of this proposed de-listing 
already exist and are not expected to change as part of closure process 
for each of the units where the wastes are currently stored, there are 
no proposed requirements addressing process changes.

V. When would the EPA finalize the proposed delisting exclusion?

    HSWA specifically requires the EPA to provide notice and an 
opportunity for comment before granting or denying a final exclusion. 
Thus, EPA will not make a final decision or grant an exclusion until it 
has addressed all timely public comments on today's proposal, including 
any at public hearings. Upon receipt and consideration of all comments, 
EPA will publish its final determination as a final rule. Since this 
rule would reduce the existing requirements for persons generating 
hazardous wastes, the regulated community does not need a six-month 
period to come into compliance in accordance with Sec.  3010 of RCRA as 
amended by HSWA.

VI. How would this action affect the states?

    Because the EPA is proposing to issue this exclusion under the 
federal RCRA delisting regulations, only states subject to federal RCRA 
delisting provisions will be affected. This exclusion may not be 
effective in states which have received authorization from the EPA to 
make their own delisting decisions.
    RCRA allows states to impose more stringent regulatory requirements 
than RCRA's under Sec.  3009 of RCRA. These more stringent requirements 
may include a provision that prohibits a federally issued exclusion 
from taking effect in the state. We urge petitioners to contact the 
state regulatory authority to establish the status of their wastes 
under the state law.
    The EPA has also authorized some states to administer a delisting 
program in place of the federal program, that is, to make state 
delisting decisions. Therefore, this exclusion does not apply in those 
states. If the Petitioners manage the wastes in any state with 
delisting authorization, the Petitioners must obtain delisting 
authorization or other determination from the receiving state before it 
can manage the waste as nonhazardous in that state.
    While Washington State has received final authorization to 
implement most of its dangerous waste program regulations in lieu of 
the federal program, including the listing and identification of U019 
and U220 wastes (See 51 Federal Register 3782), it has not been 
authorized to implement its delisting regulations program in lieu of 
the federal program. The EPA notes that Washington State has provisions 
in the Washington Administrative Code (WAC) 173-303-910(3) similar to 
the federal provisions upon which this delisting is based. These 
provisions are in effect as a matter of state law. Thus, the 
Petitioners must seek de-listing approval from Washington State in 
addition to this proposed delisting for this delisting to be effective 
as a matter of state law in Washington. In the absence of approval from 
Washington, the wastes proposed for de-listing by EPA in this action 
will continue to be regulated as ``dangerous waste'' under state law.

VII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This proposed action is exempt from review by the Office of 
Management and Budget because it is a rule of particular applicability, 
not general applicability. The proposed action approves a delisting 
petition under RCRA for the petitioned waste at a particular facility.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This proposed action is not an Executive Order 13771 regulatory 
action because actions such as approval of delisting petitions under 
RCRA are exempted under Executive Order 12866.

C. Paperwork Reduction Act

    This proposed action 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 only applies to a particular facility.

D. Regulatory Flexibility Act

    Because this rule is of particular applicability relating to a 
particular facility, it is not subject to the regulatory flexibility 
provision of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

E. Unfunded Mandates Reform Act

    This proposed action does not contain any unfunded mandate as 
described in the Unfunded Mandates Reform Act (2 U.S.C. 1531-1538) and 
does not significantly or uniquely affect small governments. The action 
imposes no new enforceable duty on any state, local, or tribal 
governments or the private sector.

F. Executive Order 13132: Federalism

    This proposed action 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.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This proposed action does not have tribal implications as specified 
in Executive Order 13175. This proposed action applies only to a 
particular facility on non-tribal land. Thus, Executive Order 13175 
does not apply to this action.

H. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This proposed action is not subject to Executive Order 13045 
because it is not economically significant as defined in Executive 
Order 12866, and because the EPA does not believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children. This proposed action's health and 
risk assessments using the Agency's Delisting Risk Assessment Software 
(DRAS), which considers health and safety risks to children, are 
described in section III.E above. The technical support document and 
the user's guide for DRAS are included in the docket.

[[Page 60984]]

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This proposed action is not subject to Executive Order 13211, 
because it is not a significant regulatory action under Executive Order 
12866.

J. National Technology Transfer and Advancement Act

    This proposed action does not involve technical standards as 
described by the National Technology Transfer and Advancement Act of 
1995 (15 U.S.C. 272 note).

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this proposed action does not have 
disproportionately high and adverse human health or environmental 
effects on minority populations, low-income populations, and/or 
indigenous peoples. The EPA has determined that this proposed action 
will not have disproportionately high and adverse human health or 
environmental effects on minority or low-income populations because it 
does not affect the level of protection provided to human health or the 
environment. The Agency's risk assessment, as described in section 
III.E above, did not identify risks from management of this material in 
an authorized, solid waste landfill (e.g., RCRA Subtitle D landfill, 
commercial/industrial solid waste landfill, etc.). Therefore, the EPA 
believes that any populations in proximity of the landfills used by 
this facility should not be adversely affected by common waste 
management practices for this delisted waste.

L. Congressional Review Act

    This proposed action is exempt from the Congressional Review Act (5 
U.S.C. 801 et seq.) because it is a rule of particular applicability.

List of Subjects in 40 CFR Part 261

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

    Dated: October 11, 2019.
Timothy B. Hamlin,
Director, Land, Chemicals and Redevelopment Division.

    For the reasons set out in the preamble, the EPA proposes to amend 
40 CFR part 261 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, 6924(y) and 
6938.

0
2. Amend Table 1 of Appendix IX to Part 261 by adding the following 
waste stream entry ``Emerald Kalama Chemical, LLC and Fire Mountain 
Farms, Inc'' in alphabetical order to read as follows:

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

                               Table 1--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
               Facility                        Address                          Waste description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Emerald Kalama Chemical, LLC and Fire  Lewis County,            Mixtures of hazardous wastewater treatment
 Mountain Farms, Inc.                   Washington.              sludges, U019 (benzene) and U220 (toluene) and
                                                                 other non-hazardous solid wastes to be removed
                                                                 by Emerald Kalama Chemical, LLC and Fire
                                                                 Mountain Farms, Inc (Petitioners) pursuant to
                                                                 closure plans approved by the Washington State
                                                                 Department of Ecology and currently in storage
                                                                 in Fire Mountain Farm's Burnt Ridge, Newaukum
                                                                 Prarie and Big Hanford facilities in Lewis
                                                                 County, Washington. The maximum amount of
                                                                 wastes that may be managed pursuant to this
                                                                 exclusion is 4,700 cubic yards at the Burnt
                                                                 Ridge facility, 10,400 cubic yards at the
                                                                 Newaukum Prairie facility, and 5,000 cubic
                                                                 yards at the Big Hanaford facility, present at
                                                                 each facility as of the effective date of this
                                                                 exclusion, subject to the conditions below.
                                                                 Wastes managed under this exclusion must be
                                                                 disposed of in a Subtitle D landfill which is
                                                                 licensed, permitted, or otherwise authorized by
                                                                 a state to accept the delisted mixed material.
                                                                 The exclusion becomes effective as of [[the
                                                                 date of final publication].].
                                                                1. Delisting Levels: The constituent
                                                                 concentrations in a representative sample of
                                                                 the waste must not exceed the following levels.
                                                                 For each constituent, the delisting
                                                                 verification level is provided for Burnt Ridge,
                                                                 Newaukum Prarie and Big Hanaford, respectively.
                                                                 Total concentrations (mg/kg): Cobalt--94,400,
                                                                 49,100, 89,900; TCLP Concentrations (mg/l in
                                                                 the waste extract): Barium--1,090, 498, 1,030;
                                                                 Cobalt--6.28, 2.92, 5.92; Copper--716, 332,
                                                                 674; Nickel--408, 184, 384; Zinc--6,170, 2,820,
                                                                 5,800; Benzaldehyde--1,760, 809, 1,660;
                                                                 Benzene--2.35, 1.08, 2.21; Benzoic Acid--
                                                                 70,400, 32,400, 66,300; Formic Acid--1,130,
                                                                 519, 1,060; Benzyl Alcohol--8,800, 4,040,
                                                                 8,290; Methanol--8,800, 4,040, 8,290; Phenol--
                                                                 5,280, 2,430, 4,970; Toluene--460, 211, 433.

[[Page 60985]]

 
                                                                2. Verification Testing: To verify that the
                                                                 waste does not exceed the delisting
                                                                 concentrations specified in Condition 1, the
                                                                 Petitioners must collect and analyze an extract
                                                                 using EPA SW-846 Method 1311 (TCLP extraction)
                                                                 from three representative composite samples for
                                                                 barium, benzaldehyde, benzoic acid, formic
                                                                 acid, and benzyl alcohol of the mixed IWBS/
                                                                 treatment solids wastes from each FMF facility
                                                                 prior to the start of closure activities to
                                                                 demonstrate that the constituents of concern in
                                                                 the petitioned waste do not exceed the
                                                                 concentrations of concern in Condition 1. If
                                                                 results from analysis of any composite sample
                                                                 do not reflect compliance with delisting
                                                                 exclusion limits, the EPA may require the
                                                                 Petitioners to conduct additional verification
                                                                 sampling to better define the volume of waste
                                                                 with waste constituent concentrations exceeding
                                                                 the delisting exclusion limits. The Petitioners
                                                                 must conduct all verification sampling
                                                                 according to a written sampling plan and
                                                                 associated quality assurance project plan which
                                                                 is approved in advance by the EPA that ensures
                                                                 analytical data are suitable for their intended
                                                                 use. Sampling data must be submitted to the EPA
                                                                 no later than 10 days after receiving the final
                                                                 results from the laboratory, or such later date
                                                                 as the EPA may agree to in writing. Any waste
                                                                 volume for which representative composite
                                                                 sampling does not reflect full compliance with
                                                                 the exclusion criteria in Condition 1 must
                                                                 continue to be managed as hazardous. The
                                                                 Petitioners must also submit to EPA a
                                                                 certification that all wastes satisfying the
                                                                 delisting concentrations in Condition 1 have
                                                                 been disposed of in a Subtitle D landfill which
                                                                 is licensed, permitted, or otherwise authorized
                                                                 by a state to accept the delisted mixed
                                                                 material of wastewater treatment sludge, and
                                                                 the quantity of waste disposed from each
                                                                 facility. This submission must be submitted to
                                                                 EPA within 60 days of completion of closure
                                                                 according to the approved closure plan.
                                                                3. Data Submittals: The Petitioners must submit
                                                                 the data obtained through verification testing
                                                                 and as required by other conditions of this
                                                                 rule, to the Director, Land, Chemical, &
                                                                 Redevelopment Division, U.S. EPA Region 10,
                                                                 1200 6th Avenue Suite 155, M/S 15-H04, Seattle,
                                                                 Washington, 98070 or his or her equivalent.
                                                                 Electronic submission via electronic mail,
                                                                 physical electronic media (e.g., USB flash
                                                                 drive), or an electronic file transfer system
                                                                 is acceptable. The Petitioners must compile,
                                                                 summarize, and maintain for a minimum of five
                                                                 years, records of analytical data and waste
                                                                 disposal required by this rule. The Petitioners
                                                                 must make these records available for
                                                                 inspection. All data must be accompanied by a
                                                                 signed copy of the certification statement in
                                                                 40 CFR 260.22(i)(12). If the Petitioners fail
                                                                 to submit the required data within the
                                                                 specified time or maintain the required records
                                                                 for the specified time, the EPA may, at its
                                                                 discretion, consider such failure a sufficient
                                                                 basis to reopen the exclusion as described in
                                                                 Condition 4.
                                                                4. Reopener Language: (A) If, any time after
                                                                 disposal of the delisted waste, the Petitioners
                                                                 possess or are otherwise made aware of any
                                                                 data, including but not limited to leachate
                                                                 data or groundwater monitoring data from the
                                                                 final land disposal facility, relevant to the
                                                                 delisted waste indicating that any constituent
                                                                 is at a higher than the specified delisting
                                                                 concentration, then the Petitioners must report
                                                                 such data, in writing, to the Director, Land,
                                                                 Chemical, & Redevelopment Division, EPA Region
                                                                 10 at the address above, or his or her
                                                                 equivalent, within 10 days of first possessing
                                                                 or being made aware of those data.
                                                                (B) Based on the information described in
                                                                 Condition 4(A) and any other information
                                                                 received from any source, the EPA will make a
                                                                 preliminary determination as to whether the
                                                                 reported information requires Agency action to
                                                                 protect human health or the environment.
                                                                 Further action may include suspending, or
                                                                 revoking the exclusion, or other appropriate
                                                                 response necessary to protect human health and
                                                                 the environment.
                                                                (C) If the EPA determines that the reported
                                                                 information does require Agency action, the EPA
                                                                 will notify the Petitioners 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
                                                                 Petitioners with an opportunity to present
                                                                 information as to why the proposed Agency
                                                                 action is not necessary or to suggest an
                                                                 alternative action. The Petitioners shall have
                                                                 30 days from the date of the EPA's notice to
                                                                 present the information.
                                                                (D) If after 30 days the Petitioners present no
                                                                 further information or after a review of any
                                                                 submitted information, the EPA will issue a
                                                                 final written determination describing the
                                                                 Agency actions that are necessary to protect
                                                                 human health or the environment. Any required
                                                                 action described in the EPA's determination
                                                                 shall become effective immediately unless the
                                                                 EPA provides otherwise.
 
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[FR Doc. 2019-23830 Filed 11-8-19; 8:45 am]
 BILLING CODE 6560-50-P