[Federal Register Volume 87, Number 133 (Wednesday, July 13, 2022)]
[Rules and Regulations]
[Pages 41604-41610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15009]



[[Page 41604]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R10-RCRA-2018-0661; FRL-9414-02-R10]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) (also, ``the Agency 
``or ``we'' in this preamble) is granting a petition submitted by 
Emerald Kalama Chemical, LLC, in Kalama, Washington to exclude (or 
``delist'') up to 3,500 cubic yards of U019 (benzene) and U220 
(toluene) industrial wastewater biological solids (IWBS) per year from 
the list of Federal hazardous wastes under the Resource Conservation 
and Recovery Act.

DATES: This final rule is effective on July 13, 2022.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R10-RCRA-2018-0661. All documents in the docket are 
listed on the www.regulations.gov website. Although listed in the 
index, some information may not publicly available, e.g., Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available electronically through www.regulations.gov. Due to 
restrictions related to COVID-19, docket materials are not available in 
hard copy form at this time. If you have further questions concerning 
docket materials, we recommend you telephone Dr. David Bartus at (206) 
553-2804.

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; email address: [email protected].
    As discussed in Section V of this document, the Washington State 
Department of Ecology is making a separate but parallel decision 
regarding the Petitioner's petition under state authority. Information 
on Ecology's action may be found at https://ecology.wa.gov/Regulations-Permits/Permits-certifications/Industrial-facilities-permits/Emerald-Kalama-Chemical.

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

I. Overview Information
II. EPA's Evaluation of Public Comments
III. Final Rule
    A. What are the terms of this exclusion?
    B. When is the delisting effective?
    C. How does this action affect the states?
IV. Statutory and Executive Order Reviews

I. Overview Information

    Emerald Kalama Chemical, LLC located in Kalama, Washington 
submitted a petition to the EPA to exclude (or ``delist'') an annual 
volume of up to 3,500 cubic yards of U019 (benzene) and U220 (toluene) 
industrial wastewater biological solids (IWBS) hazardous waste per year 
from the list of hazardous waste set forth in 40 CFR 261.33. The EPA 
published a proposed exclusion and request for comment at 87 FR 3053 
(January 20, 2022). After consideration of comments received on the 
EPA's proposed exclusion, the EPA is finalizing with certain changes 
responsive to public comment as described in the following section.

II. EPA's Evaluation of Public Comments

    The EPA received six sets of comments on the proposed exclusion, 
two of which appear to be duplicate. One set of comments was received 
directly by the EPA from the Petitioner rather than through 
regulations.gov. The EPA has placed this comment in the docket.
    Comment 1. This commenter raised issues relating to communicable 
waterborne diseases and impacts on the costs of health care.
    Response 1. While the EPA appreciates the comment, the EPA lacks 
authority to consider communicable disease vectors associated with 
wastes subject to the Resource Conservation and Recovery Act. The 
commenter also recommended that a continuous monitoring or audit 
mechanism along with a public communication plan through an email or 
push notification should be in place. The EPA notes that Condition 3 
includes detailed verification sampling and analysis requirements, and 
a provision that the Petitioner must provide the EPA with an annual 
report containing the results of verification testing. These data can 
be made available to interested members of the public through the 
Freedom of Information Act. Given this, the EPA does not believe that a 
public communications plan as recommended is necessary. No changes to 
the proposed exclusion are necessary based on this comment.
    Comment 2. This commenter raised various issues related to benzene 
and toluene as listed hazardous wastes. The first point raised by this 
commenter relates to Table 5 in the proposed rulemaking, noting ``Table 
5 shows a fault in the test sampling. According to the outline of the 
case, Table 5 provides the verification of constituents and compliance 
concentrations for the waste being addressed.''
    The second point raised by this commenter states ``in many of the 
materials listed the total constituent concentrations exceeded 100%, 
providing inaccurate data.''
    The third point raised by the commenter raised various issues 
related to sampling and analysis for benzene. These include the 
analytical detection limit used as DRAS input, consistency between 
benzene analytical data, testing for the characteristic of 
ignitability, and changes in physical state for benzene. The commenter 
noted that DRAS input for the detection limit for analysis of a TCLP 
extract of the waste for benzene is 0.5 mg/l, presumably on the basis 
of Table 1. This model input is used to calculate the actual risk of a 
modelled waste stream when analytical data are reported as non-detect 
at a specified level of detection. However, this number does not 
reflect the required analytical method sensitivity required for waste 
characterization data and for verification sampling and analysis--for 
these purposes, the method detection limits must be less than the 
compliance value, which for benzene is 0.166 mg/l for a TCLP extract of 
the waste. The actual waste characterization data provided by the 
Petitioner do in fact reflect a level of sensitivity (or detection 
limit) below the compliance value for benzene. The EPA does acknowledge 
there is some variability in the analytical data for most, if not all 
constituents of concern, which is to be expected. For benzene, all of 
the reported data are well below the calculated compliance level, and 
thus support the EPA's conclusion is that the candidate waste can be 
excluded from the applicable waste listings, subject to required 
verification sampling.
    The fourth point raised by the commentor relates to the 
Petitioner's sampling of the candidate waste for hazardous 
characteristics (e.g., ignitability and toxicity), noting that there is 
no evidence of testing for the characteristic of ignitability based on 
the potential presence of benzene. This point also noted that benzene 
may exist in multiple physical phases (i.e., solid, liquid and gas), 
such that the concentration of benzene in the waste

[[Page 41605]]

may vary depending on the state of benzene.
    The fifth and final point raised by the commentor proposed applying 
a ``cradle to grave'' approach to the excluded waste, on the basis that 
such an approach, including consideration of transportation of the 
excluded waste, would be necessary to be protective with respect to 
benzene.
    Response 2. Regarding the first point raised by the commentor, the 
comment appears to incorrectly interpret the data in Table 5--these 
data are the output from the Delisting Risk Assessment Software (DRAS) 
model and represent the maximum allowable concentration of constituents 
of concern in the candidate waste for the waste to meet the specified 
risk levels documented in Table 1 and thus can be excluded from the 
specific listed waste codes documented in the proposed rule. These data 
do not represent the actual concentration of any particular sample of 
the candidate waste. As discussed in the preamble of the proposed 
rulemaking, the Petitioner provided the EPA with extensive sampling and 
analysis of the candidate waste, which appear in the docket. The EPA 
has determined that no additional sampling of the candidate waste is 
necessary before finalization of the proposed exclusion.
    Regarding the second point raised by the commentor, this statement 
applies to model output presented in Table 2, but not Table 5. See 
Footnote 2 to Table 2 and Section IV.B of the proposed rulemaking 
preamble for a more detailed discussion of this issue. No change is 
necessary to address this second point.
    Regarding the third point raised by the commentor, the cited model 
input is used to calculate the actual risk of a modelled waste stream 
when analytical data are reported as non-detect at a specified level of 
detection. However, this number does not reflect the required 
analytical method sensitivity required for waste characterization data 
and for verification sampling and analysis--for these purposes, the 
method detection limits must be less than the compliance value, which 
for benzene is 0.166 mg/l for a TCLP extract of the waste. The actual 
waste characterization data provided by the Petitioner do in fact 
reflect a level of sensitivity (or detection limit) below the 
compliance value for benzene. The EPA does acknowledge there is some 
variability in the analytical data for most, if not all constituents of 
concern, which is to be expected. For benzene, all reported data are 
well below the calculated compliance level, and thus support the EPA's 
conclusion that the candidate waste can be excluded from the applicable 
waste listings, subject to required verification sampling. No change is 
warranted in response to this point.
    Regarding the fourth point raised by the commentor, the EPA notes 
that under the hazardous waste exclusion regulatory provisions of 40 
CFR 260.22, a petitioner is not required to demonstrate a candidate 
waste does not exhibit a hazardous characteristic- rather, this 
authority is specific to granting relief for wastes that designate for 
one or more listed waste numbers, but not for characteristic wastes. As 
provided for under 40 CFR 260.22(a)(2), however, a waste excluded from 
applicable waste listings may in fact continue to be hazardous if it 
exhibits a characteristic. Independent of an approved delisting 
petition, a facility is always responsible for demonstrating through 
direct testing or process knowledge that the waste does not exhibit a 
hazardous characteristic. The EPA notes, however, that since the waste 
characterization data provided by the Petitioner document that benzene 
is present only at sub-parts-per-million levels, a level far below the 
corresponding toxicity characteristic regulatory level and similarly 
well below the level that would cause the waste to exhibit the 
characteristic of ignitability, the waste is not expected to ever 
exhibit either characteristic. Similarly, the very low concentration of 
benzene strongly supports a conclusion that benzene will not appear as 
a separate phase, whether solid or liquid. No change is warranted in 
response to this point.
    Regarding the fifth point raised by the commentor, the EPA notes 
that the purpose of the DRAS model used as the basis for this proposed 
exclusion is to demonstrate that when a candidate waste meets the 
conditions of the exclusion, and subject to a reasonable worst-case 
mismanagement scenario, the excluded waste does not pose an 
unacceptable risk to human health or the environment. In the case of 
the Petitioner's wastes, the reasonable worst-case mismanagement is 
defined as placement in an unlined landfill (See Section III.E of the 
proposed rulemaking preamble). Therefore, the EPA does not consider the 
``cradle to grave'' approach to be necessary. No change is warranted in 
response to this point.
    Comment 3. This commentor noted that while the proposed exclusion 
addressed benzene and toluene as listed hazardous wastes, benzene may 
also exhibit the toxicity characteristic. The commentor further 
asserted that the Petitioner has failed to show how benzene ``is 
suddenly no longer displaying such characteristics.'' The commenter 
acknowledged that benzene and toluene in small amounts may not cause 
extreme health reactions but noted that if multiple facilities release 
these constituents even in small amount, there may be a significant 
aggregate effect on the environment and wildlife, specifically 
including aquatic life and the Columbia River. The commentor encouraged 
the EPA to protect clean water and the endangered and threatened 
species in the Columbia. Finally, the commentor asserted that even if 
the proposed exclusion is finalized, facilities would still have to 
apply for permit ``to dump these chemicals,'' creating more work for 
permitting agencies, and questioned whether permitting agencies have 
the resources to issue such permits and oversee their implementation.
    Response 3. The EPA appreciates and shares the commentors concern 
for the environment, wildlife, and the Columbia River. In responding to 
questions raised regarding the waste potentially exhibiting the 
toxicity characteristic for benzene or toluene, please see the 
discussion of this issue in response to Comment 2 above, and the 
language appearing in Section II.B of the proposed rulemaking preamble. 
No change is warranted in response to this point.
    Regarding the potential impact of multiple facilities discharging 
these constituents to the environment, the EPA notes this exclusion 
does not authorize discharge of any hazardous waste or constituents to 
the environment, and that even if the waste is mismanaged will not pose 
an unacceptable risk to health or the environment. Finally, the 
proposed exclusion is conditioned on the requirement that candidate 
wastes be disposed of in a solid waste landfill after the Petitioner 
demonstrates compliance with the exclusion criteria. Therefore, the 
excluded waste will not be dumped into the environment, and no 
discharge permits are required or are appropriate for management of the 
waste under the conditions of this exclusion. No change is warranted in 
response to this point.
    Comments 4 and 5. These two comments appear to be duplicative and 
are addressed concurrently.
    In the first point raised by the commentor, the commentor objected 
to the proposed changes in the hazardous status of U019 (benzene) and 
U220 (toluene) and noted the Petitioner claims that these chemicals do 
not meet the criteria for which the EPA listed it.

[[Page 41606]]

In the second point raised by the commentor, the commentor asked what 
assurance is available that the Petitioner will provide accurate and 
evidence-based information.
    Responses 4 and 5. The EPA appreciates the concerns raised in this 
comment. With respect to the first point raised by the commentor, the 
commentor appears to reflect a misunderstanding of the effect of the 
proposed exclusion. The exclusion does not at all change the hazardous 
listing status of either benzene or toluene. Rather it reflects a 
determination that this candidate waste differs from benzene or toluene 
as listed as a discarded commercial chemical product, off-specification 
species, container residues or spill residues thereof, and that on this 
basis the candidate waste does not warrant continued management as a 
listed hazardous waste. The proposed exclusion does not in any way 
affect the listed status of benzene or toluene in the form of discarded 
commercial chemical compounds. No change is warranted in response to 
this point.
    With respect to the second issue raised by the commentor, the EPA 
will, on an on-going basis, critically review records that the 
Petitioner must maintain demonstrating satisfaction of the conditions 
of the exclusion, including verification sampling and analysis. Where 
necessary or appropriate, the EPA may exercise its enforcement 
authorities under the Resource Conservation and Recovery Act to 
evaluate the Petitioners compliance with the exclusion, and to take 
such enforcement actions as may be necessary or appropriate. No change 
is warranted in response to this point.
    Comment 6. The Petitioner provided comments that generally 
supported the proposed exclusion but raised concerns with 
implementation of the proposed sampling verification plan. In 
particular, the Petitioner asserted that the proposed verification 
sampling requirements will create logistical difficulties and 
inefficiencies and proposed specific modifications to the verification 
sampling requirements.
    The first issue raised by the Petitioner's comment focused on the 
proposed requirement to sample IWBS at a rate of one sample per every 
ten roll-off boxes. The comment noted that this sampling frequency for 
non-cobalt constituents of concern will create logistical difficulties 
due to laboratory availability and turnaround time and will create a 
backlog of roll-off boxes that cannot be accommodated on-site while the 
Petitioner awaits the sampling results. More Specifically, given 
anticipated testing turnaround times, sampling results on the 10th bin 
might not be available until the 13th or 14th bin has been filled. The 
Petitioner asserted that logistically, it is impossible to hold that 
many bins onsite while awaiting results and requested clarification on 
how to handle bins awaiting analysis and subsequent bins that are 
filled in the time between sampling of the 10th bin and receipt of 
sampling results.
    The second issue raised by the Petitioner noted that because there 
are no Washington State accredited laboratories to test for 
acetaldehyde, benzaldehyde, and formic acid (as noted in the proposed 
rule's preamble), the EPA is allowing the Petitioner to use 
laboratories that are accredited for other analytes to conduct sampling 
for acetaldehyde, benzaldehyde, and formic acid. However, the 
Petitioner also stated that there are not many labs in Washington State 
that can perform tests on the IWBS for acetaldehyde, benzaldehyde, and 
formic acid, especially in reasonable proximity to the Petitioner's 
facility.
    Response 6. With respect to the first issue raised by this comment, 
the EPA appreciates the logical concerns raised by this comment. In 
response, the EPA agrees to extend the required sampling frequency to 
one sample every 14th bin. With this change, the Petitioner may sample 
the 10th bin of each set of 14 bins but may manage the 11th through 
14th bins according to the results of analytical data from the previous 
set of 14 bins. That way, results from the 10th bin will be available 
by the time the next set of 14 bins begins to be filled, eliminating 
the logistical challenges raised by this comment. Given that data 
provided by the Petitioner that for non-cobalt constituents, all waste 
constituents are expected to be well below the delisting exclusion 
limits, and that sampling of one bin per set of 14 as described will 
provide adequate assurance of compliance exclusion limits.
    With respect to the second issue raised by this comment, the EPA 
acknowledges the Petitioner's concern, acetaldehyde, benzaldehyde, and 
formic acid are constituents of concern (COCs) for the reasons listed 
in proposed rule's preamble. As such, the EPA believes it is 
appropriate to require testing as outlined in the proposed rule. 
Because the EPA is already providing some relief by changing the 
sampling frequency from every 10th bin to every 14th bin, the EPA 
expects that the Petitioner will need confirmatory laboratory services 
only about 12 times per year. While the EPA appreciates the 
Petitioner's concern that suitable laboratories may not be located 
conveniently close to the facility, some additional burden to ship 
samples to a less conveniently located laboratory is warranted due to 
the EPA's determination that acetaldehyde, benzaldehyde, and formic 
acid are COCs, and that verification sampling data are essential for 
ensuring full compliance with delisting criteria. No change is 
warranted in response to this point.

III. Final Rule

A. What are the terms of this exclusion?

    EPA is finalizing the proposed exclusion based on the Petitioner's 
petition with certain changes based on comments received, as discussed 
in Section II of this preamble.

B. When is the delisting effective?

    This rule is effective July 13, 2022. The Hazardous and Solid Waste 
Amendments of 1984 amended section 3010 of RCRA, 42 U.S.C. 6930(b)(1), 
to allow rules to become effective in less than six months when the 
regulated community does not need the six-month period to come into 
compliance. This rule reduces rather than increases the existing 
requirements and, therefore, is effective immediately upon publication 
under the Administrative Procedures Act, pursuant to 5 U.S.C. 553(d).

C. How does this action affect the states?

    This exclusion modification is being issued under the Federal RCRA 
delisting program. Therefore, only states subject to Federal RCRA 
delisting provisions would be affected. This exclusion is not effective 
in states that have received authorization to make their own delisting 
decisions. Moreover, the exclusion modifications may not be effective 
in states having a dual system that includes Federal RCRA requirements 
and their own requirements. The EPA allows states to impose their own 
regulatory requirements that are more stringent than the EPA's, under 
Section 3009 of RCRA. These more stringent requirements may include a 
provision that prohibits a federally issued exclusion from taking 
effect in the state. As noted in the notice of proposed rulemaking, 
Ecology is expected to make a parallel delisting decision under their 
separate state authority.

IV. 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.

[[Page 41607]]

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

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

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

    This action is considered an Executive Order 13771 deregulatory 
action. This final rule maintains meaningful burden reduction afforded 
by the existing exclusion consistent with changes necessary to allow 
management of liquid effluents expected from startup and operation of 
Hanford's Waste Treatment and Immobilization Plant.

C. Paperwork Reduction Act

    This 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.).

F. Unfunded Mandates Reform Act

    This 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.

G. Executive Order 13132: Federalism

    This 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.

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

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

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

    This 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.

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

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

K. National Technology Transfer and Advancement Act

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

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

    The EPA believes that this action does not have disproportionately 
high or adverse human health or environmental effects on minority 
populations, low-income populations, and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The 
EPA has determined that this action will not have disproportionately 
high or 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.

M. Congressional Review Act

    This 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: July 5, 2022.
Timothy Hamlin,
Director, Land, Chemicals and Redevelopment Division.

    For the reasons set out in the preamble, the EPA amends 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 an entry for 
``Emerald Kalama Chemical, LLC'' 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  Kalama,          Wastewater treatment
                               Washington.      sludges, U019 (benzene)
                                                and U220 (toluene),
                                                generated at Emerald
                                                Kalama Chemical, LLC in
                                                Kalama, Washington at a
                                                maximum annual rate of
                                                3,500 cubic yards per
                                                year. The sludge must be
                                                disposed of in a
                                                Subtitle D landfill
                                                which is licensed,
                                                permitted, or otherwise
                                                authorized by a state to
                                                accept the delisted
                                                wastewater treatment
                                                sludge. The exclusion
                                                becomes effective as of
                                                July 13, 2022.
                                               1. Delisting Levels:

[[Page 41608]]

 
                                                  The constituent
                                                   concentrations in a
                                                   representative sample
                                                   of the waste must not
                                                   exceed the following
                                                   levels. Total
                                                   concentrations (mg/
                                                   kg): Cobalt-62,300;
                                                   Copper-463,000;
                                                   Nickel-402,000;
                                                   Benzene-276,000;
                                                   Formic Acid-145,000.
                                                   TCLP Concentrations
                                                   (mg/l in the waste
                                                   extract):
                                                   Acetaldehyde-8.65;
                                                   Barium-74.8; Copper-
                                                   19.0; Nickel-29.2;
                                                   Zinc-426;
                                                   Benzaldehyde-6.08;
                                                   Benzene-0.166;
                                                   Benzoic Acid-5,000;
                                                   Formic Acid-174;
                                                   Benzyl Alcohol-125;
                                                   Methanol-2,500;
                                                   Phenol-375; Toluene-
                                                   32.6. For the cobalt
                                                   concentration in an
                                                   extract of the waste,
                                                   the exclusion is
                                                   based on a
                                                   demonstration of
                                                   being within a cobalt
                                                   budget defined as
                                                   2000 yds\3\-mg/L. The
                                                   Petitioner must
                                                   calculate a running
                                                   total starting with
                                                   the effective date of
                                                   this exclusion, and
                                                   for each annual
                                                   period. The running
                                                   total shall be the
                                                   sum of ViCi from i=1
                                                   to n, where:
                                                    Vi = the volume of
                                                     each batch in cubic
                                                     yards (yd\3\)
                                                    Ci = the
                                                     concentration of
                                                     cobalt in a TCLP
                                                     extract of each
                                                     batch as per
                                                     Condition 3 of this
                                                     exclusion (mg/L)
                                                    n = number of
                                                     batches generated
                                                     per year
 
                                                  The Petitioner may
                                                   conduct analysis for
                                                   cobalt in an extract
                                                   of the IWBS biosolids
                                                   using the in-house
                                                   method documented in
                                                   ``Cobalt Content In
                                                   Sludge Extract
                                                   Prepared According to
                                                   Toxicity
                                                   Characteristic
                                                   Leaching Procedure
                                                   (TCLP Cobalt),
                                                   Revision 1.0, 11/24/
                                                   2021 as placed in the
                                                   rulemaking docket.
                                                   The Petitioner may
                                                   monitor the quantity
                                                   of waste in each
                                                   batch on a weight
                                                   basis, converting to
                                                   volume using a
                                                   documented density of
                                                   0.67 tons/cubic yard.
                                                   Provided that the
                                                   cumulative cobalt
                                                   budget remains less
                                                   than the limit of
                                                   2000 yds\3\-mg/L each
                                                   batch will be
                                                   considered in
                                                   compliance with the
                                                   exclusion limit for
                                                   cobalt in an extract
                                                   of the waste.
                                                   However, any batch
                                                   with a cobalt
                                                   concentration greater
                                                   than 1.99 mg/l in a
                                                   TCLP extract of the
                                                   waste cannot be
                                                   managed under this
                                                   exclusion and must
                                                   remain subject to
                                                   RCRA Subtitle C
                                                   regulation. For the
                                                   first year following
                                                   the effective date of
                                                   this exclusion, the
                                                   Petitioner shall also
                                                   document the density
                                                   of IWBS for each
                                                   batch of IWBS using
                                                   ASTM Method ASTM
                                                   E1109-19 or other
                                                   equivalent method for
                                                   purposes of verifying
                                                   the 0.67 tons/cubic
                                                   yard density. In
                                                   addition, the
                                                   Petitioner shall, on
                                                   an on-going monthly
                                                   basis, obtain
                                                   analysis of one spit
                                                   aliquot of the TCLP
                                                   extract of IWBS
                                                   biosolids for cobalt
                                                   from an independent
                                                   laboratory accredited
                                                   by the Washington
                                                   State Department of
                                                   Ecology subject to
                                                   the provision of
                                                   Condition 2 below.
                                               2. Reporting. Within 60
                                                days of each anniversary
                                                of the effective date of
                                                this exclusion, or such
                                                other time as the EPA
                                                may approve in writing,
                                                the Petitioner shall
                                                provide a written report
                                                to the EPA documenting
                                                all data gathered
                                                regarding extraction and
                                                analysis of the extract
                                                for cobalt pursuant to
                                                the requirements of this
                                                exclusion, including the
                                                results of IWBS density
                                                measurement (first year
                                                report only) and the
                                                independent laboratory
                                                data for cobalt required
                                                by Condition 1. This
                                                report must be
                                                accompanied by the
                                                signed certification
                                                language appearing at 40
                                                CFR 270.1(d)(1). After
                                                review of the density
                                                data presented in this
                                                report, the EPA may
                                                provide the Petitioner
                                                written approval to use
                                                some other numerical
                                                density than 0.67 tons/
                                                cubic yard for purposes
                                                of subsequent
                                                implementation of cobalt
                                                budget calculations
                                                pursuant to Condition 1.
                                                Following submission of
                                                the first annual report,
                                                the Petitioner may
                                                request relief from the
                                                spilt aliquot analysis
                                                requirement in Condition
                                                1. Upon receipt of
                                                written approval of the
                                                request from the EPA,
                                                the Petitioner will be
                                                relieved of the spilt
                                                aliquot analysis
                                                requirement in Condition
                                                1.

[[Page 41609]]

 
                                               3. Verification Testing:
                                                To verify that the waste
                                                does not exceed the
                                                delisting concentrations
                                                specified in Condition 1
                                                (except for cobalt), the
                                                Petitioner must collect
                                                and analyze one
                                                representative waste
                                                sample of every group of
                                                14 roll-off boxes of
                                                wastewater treatment
                                                sludge, with the sample
                                                being obtained from the
                                                10th box of each group
                                                of 14. If this sampling
                                                is expected to occur on
                                                a weekend or a Federal
                                                holiday, the Petitioner
                                                may substitute sampling
                                                of the 9th or 11th box
                                                in each batch of 14
                                                boxes, with sampling of
                                                subsequent batches
                                                resuming the original
                                                schedule of sampling the
                                                10th roll-off box of
                                                each batch of 14 boxes.
                                                The Petitioner may
                                                manage the 10th through
                                                14th box of each group
                                                of 14 according to the
                                                verification sampling
                                                results of the previous
                                                group of 14 boxes
                                                pending receipt of
                                                verification sample
                                                results from the 10th
                                                box of the current set
                                                of boxes. The EPA notes
                                                that the Washington
                                                State Department of
                                                Ecology does not
                                                currently accredit any
                                                laboratory in the state
                                                of Washington for
                                                analysis of
                                                acetaldehyde,
                                                benzaldehyde, or formic
                                                acid in samples of solid
                                                material. The EPA will
                                                accept laboratory
                                                analyses result for
                                                acetaldehyde,
                                                benzaldehyde and formic
                                                acid from a laboratory
                                                that otherwise holds
                                                accreditations for all
                                                other analytes. For
                                                cobalt, sampling must
                                                occur once per batch (as
                                                defined by a single roll-
                                                off box). All sampling
                                                and analysis must be
                                                conducted using methods
                                                with appropriate
                                                detection concentrations
                                                and elements of quality
                                                control. Sampling data
                                                must be provided to the
                                                EPA no later 60 days
                                                following each
                                                anniversary of the
                                                effective date of this
                                                delisting, or such later
                                                date as the EPA may
                                                agree to in writing. No
                                                earlier than the first
                                                anniversary of the
                                                effective date of this
                                                delisting, the
                                                Petitioner may request
                                                that the EPA approve
                                                changes to the sampling
                                                frequency under this
                                                condition. Such a
                                                request must include
                                                data and analysis that
                                                demonstrated that the
                                                revised sampling
                                                frequency will ensure
                                                that all wastes subject
                                                to this exclusion will
                                                consistently satisfy the
                                                delisting exclusion
                                                criteria under Condition
                                                1. The Petitioner 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. The
                                                Petitioner's annual
                                                submission must also
                                                include 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
                                                wastewater treatment
                                                sludge.
                                               4. Changes in Operating
                                                Conditions: The
                                                Petitioner must notify
                                                the EPA in writing if it
                                                significantly changes
                                                the manufacturing
                                                process, the chemicals
                                                used in the
                                                manufacturing process,
                                                the treatment process,
                                                or the chemicals used in
                                                the treatment process.
                                                The Petitioner must
                                                handle wastes generated
                                                after the process change
                                                as hazardous until it
                                                has demonstrated that
                                                the wastes continue to
                                                meet the delisting
                                                concentrations in
                                                Condition 1,
                                                demonstrated that no new
                                                hazardous constituents
                                                listed in Appendix VIII
                                                of part 261 have been
                                                introduced into the
                                                manufacturing process or
                                                waste treatment process,
                                                and it has received
                                                written approval from
                                                the EPA that it may
                                                continue to manage the
                                                waste as non-hazardous.
                                               5. Data Submittals: The
                                                Petitioner must submit
                                                the data obtained
                                                through verification
                                                testing or 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, 98101 or his
                                                or her equivalent. The
                                                annual verification data
                                                and certification of
                                                proper disposal must be
                                                submitted within 60 days
                                                after each anniversary
                                                of the effective date of
                                                this delisting
                                                exclusion, or such later
                                                date as the EPA may
                                                agree to in writing. The
                                                Petitioner must compile,
                                                summarize, and maintain
                                                on-site for a minimum of
                                                five years, records of
                                                analytical data required
                                                by this rule, and
                                                operating conditions
                                                relevant to those data.
                                                The Petitioner 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 Petitioner fails
                                                to submit the required
                                                data within the
                                                specified time or
                                                maintain the required
                                                records on-site for the
                                                specified time, the EPA
                                                may, at its discretion,
                                                consider such failure a
                                                sufficient basis to
                                                reopen the exclusion as
                                                described in paragraph
                                                5.
                                               6. Reopener Language: (A)
                                                If, any time after
                                                disposal of the delisted
                                                waste, the Petitioner
                                                possesses or is
                                                otherwise made aware of
                                                any data relevant to the
                                                delisted waste
                                                indicating that any
                                                constituent is at a
                                                higher than the
                                                specified delisting
                                                concentration, then the
                                                Petitioner 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.

[[Page 41610]]

 
                                                  (B) Based on the
                                                   information described
                                                   in Condition 4 or
                                                   6(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 Petitioner
                                                   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 Petitioner with
                                                   an opportunity to
                                                   present information
                                                   as to why the
                                                   proposed Agency
                                                   action is not
                                                   necessary or to
                                                   suggest an
                                                   alternative action.
                                                   The Petitioner shall
                                                   have 30 days from the
                                                   date of the EPA's
                                                   notice to present the
                                                   information.
                                                  (D) If after 30 days
                                                   the Petitioner
                                                   presents 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. 2022-15009 Filed 7-12-22; 8:45 am]
BILLING CODE 6560-50-P